Judge Richard Berman’s reversal of the Tom Brady suspension is nothing less than a scathing rebuke of Roger Goodell and the NFL—and yet another major legal loss for the league. This case has always been about far more than the air pressure of footballs—so what does it mean for this commissioner’s power and the fundamental relationship between the league and its players?
With Thursday’s decision by Judge Richard Berman to overturn the NFL’s four-game suspension of Tom Brady, the Deflategate chapter of the NFL’s history finally reached a decision point, more than half a year after the AFC Championship Game that set events in motion. After months of obfuscation, frustration, failed negotiation and litigation, Judge Berman issued an excoriating opinion that is a stunning rebuke to the NFL and to the power of Commissioner Roger Goodell. The judge ruled that the league did not provide Brady with due process and found aspects of of the decision “fundamentally unfair” to Brady. Add Brady to the Saints bounty episode, Ray Rice, Adrian Peterson and Greg Hardy, and the NFLPA now has a “Winning Five” of cases in which Goodell’s discipline has been overturned on appeal, this last being by far the biggest.
The decision came, ironically, from the NFL's hand-picked legal venue—the Southern District of New York—foreclosing the NFLPA from going to their preferred destination in Minnesota. The NFLPA, in a statement, said, “This decision should prove, once and for all, that our collective bargaining agreement does not grant this commissioner the authority to be unfair, arbitrary and misleading.” Expect the NFL to appeal, but for now Tom Brady is set to open the season next Thursday night as the quarterback for the New England Patriots.
I sat in the hearings in Judge Berman’s court and noticed the strident and even offensive questioning from the judge toward the NFL’s lawyers. There could have been many reasons for that, but as it turned out Berman had true problems with the process. He was especially concerned about the arbitrary nature of the discipline, the use of catch-all “conduct detrimental” rather than an application of any specific policy. Berman noted that the Wells Report even opened with an introduction of an investigation into a “Competitive Integrity” policy that was not articulated to players. Berman had problems with inadequate notice to Brady, the league’s failure to grant Brady’s side the chance to examine Goodell confidante and senior attorney Jeff Pash, and the failure to allow the Brady camp to even view the investigative files of the Wells Report. Berman’s money quote: Goodell “had dispensed his own brand of industrial justice.” Well, that is exactly what Goodell thought he was able to do. No more. The Conduct Commissioner has suffered another significant blow.
Big picture: In the distrusting and biting relationship between the league and the union, there may finally be a leverage shift here, albeit perhaps one that won’t play out until the next CBA negotiation. The NFLPA can now hold up its “Winning Five” in trying to negotiate into the CBA what they have now won in courts and arbitration. Of course, NFL owners are wily negotiators and may not give in without receiving something valuable in return. But the union can now negotiate with a bit of heft in this area.
As to the league, there will be changes. I am not sure exactly what those changes will be or where they will come, but there will changes all the way the organizational structure—up to, but in my opinion not including, Goodell. Incoming COO Todd Leiwecke likely has a mandate, and it may include some deletions. The reverberations from this stunning defeat will have many ripples.
How We Got Here
Judge Berman clearly would have preferred the sides to settle, yet he probably knew that he would have to rule from the moment he saw how the NFL and NFLPA camps interacted. Negotiations towards a mutually agreeable settlement between these two parties was never going to be an option, especially with what each side had invested in their positions. The league and the union went through this “negotiation and litigation” dance for two years in 2010 and 2011 while trying to negotiate a collective bargaining agreement. That process also broke down, with the NFLPA choosing a path of decertification and antitrust litigation—ironically, Tom Brady was one of the named plaintiffs—before being forced to negotiate when an appeals court allowed the NFL lockout to continue.
Deflategate pitted the irresistible object against the immovable force. The NFL—armed with the lengthy, expensive (and much criticized) Wells Report—maintained that Brady engaged in conduct detrimental to the game, striking at the heart of the league’s “integrity” mantra. Brady asserted that he had done nothing wrong, save for lack of cooperation with Wells. The NFL was willing to reduce a game or two from the suspension, which Brady may have accepted—but if only Brady accepted some culpability. That, to Brady’s camp, was a non-starter. Even with the NFL softening the language they would accept from “admission of guilt” to “acknowledgement of responsibility,” Brady’s side was unmoved. Thus, on to Berman.
Flaws on Both Sides
As to the oft-repeated question over the past few months as to why this topic became such an interminable morass that sunk deeper into the abyss every week this offseason, the blame lies with both sides.
Commissioner Goodell decided on a four-game suspension without any apportionment of the suspension to either a deflation scheme or the lack of cooperation from Brady, although the suspension clearly came from both of those transgressions. Again, criticism of Goodell’s application of discipline centered on an arbitrary punishment, this one somehow appropriate because it coincided with the same penalty for a steroid suspension. (Judge Berman, in his ruling, found that comparison especially whimsical). And the NFL did what it now does in this era of over-investigation, a correction from the lax Ray Rice episode year ago. The investigation went on too long and produced findings that, while containing circumstantial evidence against Brady, left Wells and the NFL open to much criticism.
Brady and his camp, however, are also not blameless in the escalation. As I (and many others) have said, had Brady simply said—at some point after the championship game or even the Super Bowl—something to the effect of “Hey, I told the guys I liked the balls on the low side of the allowable pressure” while not conceding any guilt or responsibility, he might have received a fine and that would have been the end of it. However, once the forceful denials were the default response, the battle was on, continuing into the appeal of his suspension in front of Goodell.
As to that appeal, Goodell practically begged Brady to give him a reason to lower or even nullify the suspension. Instead, the hearing produced more blanket denials and the story of a destroyed phone that may have held key evidence for the case, and Goodell upheld the suspension.
And beyond the external battles between Brady and the NFL, there were internal battles among his own camp. Early in the process and through the Wells investigation, Brady was advised and accompanied by agent Don Yee. After the discipline and through the recent court phase of the process, however, Yee was supplanted by union representatives and NFLPA outside counsel Jeffrey Kessler. And it was Kessler, in response to questioning from Judge Berman about lack of cooperation with the Wells investigations, who threw Yee squarely under the bus by saying that Brady should have complied more than he did.
Also, a nugget on the destroyed phone from reading through the exhibit of Brad Maryman, the forensic expert who examined the two phones sandwiching the destroyed phone. Brady and Yee had indicated that part of the reason for the destruction of the phone was that Brady wanted to switch from a Samsung to an iPhone. However, Maryman’s declaration shows the phone subsequent to the destroyed phone was another Samsung, not an iPhone. This may not have meant much in the larger scheme, but one wonders why Brady and Yee mentioned a switch to an iPhone when, it appears, there never was that switch.
Beyond the case of deflated footballs, there are much deeper issues from this unfortunate episode in NFL legal and business annals. Let’s examine.
The Sheriff’s Legacy
I have often labeled Roger Goodell the “Conduct Commissioner,” and for good reason. Indeed, when we look back on the tenure of Goodell in decades to come, it will be associated far more with player conduct than with any other initiative during his term.
As a Packers executive in 2007, I bore witness to the first illustration of the Conduct Commissioner. We had acquired a receiver we had coveted, Koren Robinson, after his release from the Vikings following a DUI at training camp. With a February trial date, we had reason to believe—through past practice under Paul Tagliabue—that we would have his services during the upcoming season. Tagliabue’s history as commissioner was to defer imposing discipline until after the player’s case had wended its way through the judicial system. However, as we soon found out, there was a new sheriff in town. Goodell read the police report with an officer smelling alcohol on Robinson’s breath and suspended Koren … for a year.
In the years following, Goodell suspended (1) Adam “Pacman” Jones, who drew discipline for various incidents that, while certainly problematic, never resulted in an arrest, and (2) Ben Roethlisberger, who earned a six-game suspension (later reduced to four) for conduct that, while vulgar, never resulted in a criminal charge. As the NFLPA entered collective bargaining negotiations in 2010 and 2011, reining in Goodell’s power over player conduct was a clear priority. One union official told me Goodell had clearly “jumped the shark.”
Goodell and the NFL, of course, had other ideas. While willing to turn over drug-testing appeals to an independent arbitrator, he would resist giving up autonomy over player conduct. I asked him about it during the negotiations and he responded: “No chance, Andrew. That’s the integrity of the game. I’m not giving that up.” Thus, in the swirl of negotiations about a multitude of issues to reach an agreement, what was a high priority for the union early in negotiations was sacrificed for other concessions, many involving health and safety (concessions that were clearly in the owners’ best interests to give).
In the four years since Goodell and NFLPA chief DeMaurice Smith put their signatures to the CBA, we have had a labor agreement but certainly not labor peace. Save for a three-years-in-the-making revision of drug policies that brought HGH testing to the NFL, there has been conflict in everything that either side tries to accomplish. The NFL and NFLPA’s relationship has been characterized by a lack of trust and palpable dislike among several of the principals. And no area has drawn more conflict that this area of continuing discord: player conduct and discipline.
The NFL-NFLPA Tote Board
Despite the “loss” in the CBA, the NFLPA has since claimed victory in this area through arbitrations and court decisions.
The union referred to its “Winning Four” of (1) the Saints’ bounty case, in which Tagliabue, acting as Goodell’s appointed appeal arbitrator, rebuked his predecessor by removing the suspensions of the players involved; (2) the Ray Rice arbitration appeal, in which former judge Barbara Jones found Rice’s testimony more credible than that of league executives (ouch) and lifted Rice’s indefinite suspension, (3) the Adrian Peterson court appeal, where NFLPA-favored Judge David Doty vacated Peterson’s suspension and sent the case back for re-arbitration, and (4) the Greg Hardy arbitration appeal, where Goodell’s handpicked arbitrator, Harold Henderson, reduced a 10-game suspension to four games, simply saying the penalty was “too much.” The NFLPA clearly considered these cases “wins” on their tote board as they prepared for their biggest case of all, involving superstar Tom Brady. And they can now add a fifth win, by far the biggest.
Nevertheless, despite all of those legal losses, the collective bargaining agreement and Goodell’s cherished CBA commissioner power is still intact until the CBA’s expiration in 2020 unless there is either (1) an amendment to the CBA restricting that power, or (2) an owner-led initiative to reduce such power. Regarding the former, good luck with that. The NFL would only potentially agree to give away one of its prime bargaining tenets without getting some valuable consideration from the NFLPA in return. As to the latter, although a couple of owners—Jonathan Kraft and Jed York—have hinted at a possible change in that role for Goodell, there has not—yet—appeared to be any collective move to diminish his disciplinary role or powers. From the league perspective, the “Winning Four” did not shake the reality of Article 46 of the CBA: the Commissioner’s power to discipline under the catchall “conduct detrimental.” Internally in their offices, the NFL likely could explain away these results as minor speed bumps while retaining Goodell’s collectively bargained power in this area of player conduct. What happens now, with this latest and largest rebuke, is yet to be seen. How will the league’s owners look at this latest loss?
The problem for the league is that there is now a road map for a player unhappy with Goodell’s “judge and jury” role: Call the union, have them summon Jeffrey Kessler, and away we go. One does have to wonder, though, the limits of the NFLPA’s legal budgeting and if there would be a barrier to entry for players wanting this type of service. Even with Kessler’s success and obvious talent, the NFLPA cannot keep adding to his tab by running to him to challenge the commissioner at every turn.
A Referendum on Power
The Brady case has been the most public and high-profile referendum on Goodell’s power yet. And Judge Berman's vacating of the suspension is the latest, and strongest, rebuke yet to Goodell’s cherished disciplinary powers. It was not a case, as in Bounty or Rice, in which Goodell deferred authority to others. It was not a case, like Peterson or Hardy, where, with sponsors braying, the NFL scrambled to keep the players off the field, perhaps aware they may take their lumps in court and arbitration. And it was not a case like Peterson in the player-friendly court of Judge Doty in Minnesota.
Indeed, the Brady case only went in front of Judge Berman because the NFL directed that it be. Fearful of the NFLPA returning to seek redress in Judge Doty’s court in Minnesota—which it tried (unsuccessfully) to do—the NFL preemptively filed in the Southern District of New York, whereupon the case landed at the feet of Judge Berman. NFL lawyers had to be feeling a bit smug in foreclosing the union from their desired appellate jurisdiction by preemptively filing in New York, where the vast majority of arbitration awards involving employer groups (as the NFL is) and employee groups (as the NFLPA is) had been upheld. The NFL's loss in front of Judge Berman, is the ultimate “careful what you wish for” moment in sports law annals. Of course, an appeal will follow to the Second Circuit Court of Appeals, where the league’s lawyers surely feel comfortable (they hope). The NFL and its lawyers handpicked this venue; a rebuke here is a stunning blow.
From the beginning, this matchup of Brady v. Goodell was always a battle royale. On one side, there was an A-list player backed by a union sensing an opportunity to attack Goodell’s power on a grand and public stage. On the other side, there was Goodell and his army of NFL lawyers seeking affirmation from a truly independent arbiter to push back a union constantly determined to accomplish in litigation what it could not through collective bargaining. Thus the stage was set and ultimately left in the hands of Judge Berman.
The case of Tom Brady and the NFLPA against Roger Goodell and the NFL long since stopped being about deflated footballs and unrecovered or destroyed communications. Rather, it was a case about the commissioner’s power, with the “Conduct Commissioner” sitting at the brink.
Throughout its oral and written arguments to Judge Berman’s court, the league tried to reduce the case to its most basic premise: that Article 46 of the CBA gives Goodell power to levy discipline, hear and weigh player appeals of such discipline, and uphold such discipline. All of those things happened with Brady, whom NFL lawyers referred to as a “disappointed grievant.” While the NFLPA, on the other hand, went through a laundry list of items in front of Berman—lack of notice, fundamental unfairness, evident partiality, bias, etc.—the NFL responded by pointing to the CBA, like a player on a team ahead in the game pointing to the scoreboard in response to a yapping opponent. Judge Berman clearly saw it otherwise.
The CBA argument was an obvious one for the NFL and, in their labor attorneys’ collective opinion, an effective one. From the league’s point of view, the NFLPA was at it again, spending hundreds of thousands, even millions, of dollars on outside counsel to try to recover something it could not achieve internally through bargaining four years ago. More importantly, the argument that courts should not get involved in an arbitration process laid out in a contract (CBA) between labor (players) and management (NFL) is a solid and strong one that is steeped in legislative and judicial precedent all the way to the United States Supreme Court. Federal labor law policy encourages employer and employee groups to handle their disputes internally and not come to court seeking redress from an outside party.
For all of those reasons, a rebuke by Judge Berman is staggering for the NFL—subject, of course, to an appeal to what the NFL considers an even friendlier venue, the United States Court of Appeals for the Second Circuit.
There is one thing has become clear for the NFL: It needs to either change its investigatory process or remove the façade of “independence” from its investigations. The league has, over the last two years, hired law firms—at great cost—to purportedly probe into the underside of league and team operations. While the lawyers and the firms have sterling credentials and reputations, their relationships with the NFL open up, with some good reason, an uncomfortable perception of bias.
A year ago, following the release of the Ray Rice elevator video, the NFL chose Robert Mueller, the former director of the FBI, to lead the internal investigation into missteps in the Rice disciplinary process. While Mueller had no previous direct ties with the NFL, his law firm, WilmerHale, was the home of Ravens president Dick Cass for over 30 years, and the firm had previously represented owners such as Steve Bisciotti, Jerry Jones and Dan Snyder.
While the Mueller Report brought some closure to the question of whether anyone in the NFL had seen the Rice video before its public release on TMZ, it left open questions as to its “independence” due to (1) the league’s previous relationship with WilmerHale, (2) the fact the report was overseen by two NFL owners, and (3) its failure to levy sanctions on the league, settling merely for future recommendations. Of course, the NFL could have avoided any appearance of partiality if it simply had hired an investigatory arm with no previous ties to the subject of the investigation. It seems a simple prospect.
And then there is Ted Wells and his law firm, Paul Weiss, now having completed two separate four-month inquiries for the NFL (into the Dolphins’ and Patriots’ cases) at a combined estimated cost north of $5 million. In both the legal and public relations forums, the question of the relationship between the NFL and Wells has been fodder for discussion, even causing a rare public response by Wells—arranged by the NFL—to defend his integrity and independence.
I understand the credentials of Wells and the desire to use a firm with which there is a trusting professional relationship. But if I’m the NFL, I'm asking myself: Why open myself to questions of impropriety and bias, whether true or not, by enlisting a firm with a previous relationship? Why have a partner at that firm, Lorin Reisner, serving as both as an investigator for the report and an attorney representing the NFL in the Brady appeal hearing? Why use the same firm to “independently” investigate misbehavior as the one representing the NFL in its defense of the massive concussion litigation for years, at a cost the NFLPA estimates to be $7 million?
Surely there are investigative outfits that have no previous relationship with the NFL and are skilled at such work. The NFL must either move away from the cloak of independence to these inquiries, or hire truly independent investigators to do this work.
As I said at the outset of the Mueller probe last September, I believe the NFL needs a full-time independent investigator, an ombudsman, if you will. This person would be a self-governor for the NFL, ensuring that work is done as independently and as free from bias as possible. He or she would put in place standards and best practices and be empowered to ferret out what is right and what is wrong in the NFL office and, by extension, its team practices. Although the hiring of an ombudsman would not eliminate a troubling appearance of hubris and arrogance, it would be a positive first step.
As I often say about Goodell, part of his role is take public relations hits so that his bosses, the owners, don’t have to. In last year’s domestic violence firestorm, team owners Steve Bisciotti, Zygi Wilf and Jerry Richardson, respectively, applied no discipline to Ray Rice, Adrian Peterson and Greg Hardy. Yet it was Goodell who—according to courts and arbitrations—overdisciplined all three and received the brunt of public criticism about lax treatment of the issue.
While Goodell certainly does not help himself with his robotic, corporate public persona and unrevealing platitudes, he willingly receives a disproportionate amount of criticism compared to the actions, or inactions, of those instructing him to carry out their orders. Again, all part of the job.
This Deflategate mess is another example of Goodell and the league office taking the fall publicly for carrying out orders for the owners. The NFL did not sit around after the AFC Championship Game and say, “Hey, let’s investigate the Patriots!” Rather, the league investigated the Patriots because the Colts—and, I would assume, others— asked/requested/demanded that it do so. Colts owner Jim Irsay is one of “the 32” whom Goodell serves.
And in this day and age, when the NFL investigates, it really investigates. After being chastised for its insufficient investigatory process by both the Mueller Report and Judge Jones in the Rice disciplinary process, the NFL has now gone to the other extreme. While many have vilified the Wells Report, including Judge Berman’s questioning of some omissions—he opined, “Mr. Wells is a smart man, correct?”—the investigation did not lack resources. In this post-Rice-video era, time and cost of investigations are not an issue for the NFL.
Every NFL team possesses a healthy dose of paranoia that it does not receive equal treatment from the league office, for whatever reason. (In Green Bay we always felt underserved because there is no owner.) Further, teams have felt over the years that certain franchises receive preferential treatment from the league, one of those being the Patriots. There has been, and still is from what I am told, a perception among team executives that the Patriots always play to the edge with competitive requirements such as pre-game injury reporting and in-game formations and were able to “get away with it” because of the close relationship between Goodell and Robert Kraft. Certainly, two of the teams with Patriots paranoia have been the Colts and Ravens; we know the former demanded an inquiry into deflated footballs, and we suspect the latter did as well. I would guess several other teams are smugly satisfied that Goodell or the league office spent the resources they did to investigate the Patriots. And statements like those this week from Texans owner Bob McNair, who commented on the Patriots’ lack of cooperation and maintained that J.J. Watt would never cheat, further echo that sentiment.
Thus, while Goodell may have lost a solid ally in Kraft—although I am skeptical that he actually has lost his support—he has likely scored points with several owners in his strong stance against a perceived favorite. While there have been scattered reports about some owners being unhappy with the length of the investigation, we have not yet seen one owner publicly state anything other than full support of Goodell. While the public, fans and media have their fun mocking and excoriating Goodell, his bosses have supported him and compensated him handsomely.
In the Bubble
Speaking of Goodell’s abuse in the court of public opinion, I wonder if he even realizes the extent of dissatisfaction around him. My sense is that Goodell is somewhat like an elite athlete in this sense, surrounded by people—NFL owners, top league executives, attorneys, business partners—who tell him what he wants to hear, not what he needs to hear. I don’t sense anyone willing to become a negative voice in the wilderness amidst the league’s unrivaled prosperity. That may soon change, as there are rumors of incoming COO Leiwecke implementing changes within Goodell’s inner circle. However, Goodell and his bosses—the owners— can retreat to the comfort of soaring metrics, as the NFL pushes towards goals of $15 billion, $20 billion and $25 billion in annual gross revenues.
As it moves from one crisis to another—the “Concussion” movie looms in December as another negative talking point about the sport—business booms. A league and team-friendly CBA is in place for another five years, franchise values continue to soar, broadcast contracts and ratings are at record levels (with Super Bowl 50 commercials steadily selling at $5 million per 30 seconds), and speaking of “Concussion,” the head trauma litigation is almost completely settled.
For now, Deflategate will proceed outside the headlines, buried among court dockets and more briefs, filings, hearings and conferences. The season will begin, and millions of fans will flock back to the NFL nest, knowing that the other stuff is there, but just content to consume the product. You and I know this—and more importantly, the NFL knows it.
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