Two Views of the Brady Deflategate Ruling
King: The Punishment Does Not Fit the Offense—If There Was an Offense
Here’s what bothers me about the clearly legal and by-the-book 2-1 ruling by the three-judge U.S. Court of Appeals for the Second Circuit panel, which reinstates the four-game suspension of Patriots quarterback Tom Brady stemming from the Deflategate scandal:
Four respected American jurists have now ruled on NFL commissioner Roger Goodell’s discipline of Brady and the Patriots. It’s tied. Two have sides with Goodell (Second Circuit judges Denny Chin and Barrington Parker, Jr.) and two have sided against Goodell (Chief judge Robert Katzmann of the Second Circuit and Richard Berman, the judge from appeals court who originally set aside Goodell’s discipline last summer). So it’s 2-2. And the tie goes to the commissioner.
There’s been no indication in the hours since Monday morning’s ruling by the appeals court that Goodell intends to take out a velvet hammer and lessen the suspension. The Patriots now face playing the first four games of the season—including the Sunday night season-opener against the tough Arizona Cardinals—with unproven Jimmy Garoppolo starting for the first time in his NFL career.
My stance here has been clear: There is significant and damaging circumstantial evidence in the case against Brady and the two Patriots operatives who, the Wells Report alleges, tampered with footballs to take air out of them before the AFC Championship Game in January 2015. But I’ve never been convinced that it is clear and overwhelming, and there are holes big enough in the Wells Report to throw a Brady spiral through.
The two judges, however, were clear in their ruling that Goodell has the power, via the CBA, to do what he wants in cases like this one. He doesn’t have to have an independent investigation of a case. He doesn’t have to have the kind of incontrovertible evidence you’d need in an American courtroom to convict someone. He can do it, essentially, by having a sort of 51-49 balance of evidence if he chooses. Wrote Chin and Barrington: “The parties contracted in the CBA to specifically allow the commissioner to sit as the arbitrator in all disputes … They did so knowing full well that the commissioner had the sole power of determining what constitutes ‘conduct detrimental,’ and thus knowing that the commissioner would have a stake both in the underlying discipline … Had the parties wished to restrict the commissioner’s authority, they could have fashioned a different agreement.” Of this there is no dispute.
But I’ve always thought in this case there was, and still is, one absolutely vital piece of evidence missing. It’s a piece of evidence that once and for all could have determined whether there had been any monkey business with the footballs in the hour before the AFC title game.
The NFL should have measured the footballs before, at halftime and after all 267 regular-season and postseason games in 2015—not just selected games, which is what the league did. That would have determined the effect that weather had on footballs, to see if the league’s questionable science in the Wells Report withstood the rigors of an NFL season. The fact that the NFL did so only in scattered games (according to Goodell) simply to ensure no team was cheating this year totally missed the point—if the league was ever trying to find out the truth. To me, the NFL’s scattershot 2015 testing tells the world it never wanted to find out the effect of weather on footballs.
To recap: In his report, Wells wrote that the Patriots footballs should have measured between 11.32 pounds per square inch and 11.52 psi, according to the weather that day and the effects of the Ideal Gas Law. The 11 footballs that were measured at halftime of the championship game were tested on two gauges. The average of all 22 readings was 11.30 psi … 0.02 lower than what the league’s Ideal Gas Law science would have allowed for balls that started the day at the Patriots’ level of 12.5 psi.
This is enough to whack Brady four games, take $1 million from the Patriots, and dock them a first-round pick in 2016 and a fourth-round pick in 2017?
I’ll go back to the word used by an executive of a team that has jousted with the Patriots often in the past when the discipline first came down: “draconian.”
And nothing, to me, has changed in the months since Goodell’s ruling. He killed an ant with a sledgehammer. Now the Second Circuit Court of Appeals has let him do it. —Peter King
Brandt: Goodell’s Power Confirmed, Thanks to a Player-Approved CBA
The tea leaves were right. As I remarked after sitting in on the Second Circuit’s review of the Tom Brady case on March 3rd, two of the three judges were as pro-NFL in the appellate court as Judge Richard Berman was pro-Brady in the lower court. Judges Denny Chin and Barrington D. Parker were sympathetic to the NFL's arguments stressing the power of the commissioner and his broad discretion over “conduct detrimental.” They were quite strident regarding NFLPA and Brady attorney Jeffrey Kessler, cutting him off repeatedly and bringing up factual issues unfavorable to his side, such as the destruction of Brady’s phone. As turned out to be the case, it appeared those two judges had their minds made up even before writing today’s 2-1 opinion: Roger Goodell was well within his rights to suspend Tom Brady.
After a stretch of defeats for the NFL in cases involving Ray Rice, Adrian Peterson and Brady, this has been a good month for Goodell’s cherished CBA powers over player conduct. A couple of weeks ago an arbitrator upheld the content and enforcement options of the NFL’s conduct policy, one reshaped following the missteps of the Rice case. The policy—featuring an exempt list and leave with pay as elements that the commissioner can apply toward players whose conduct is under scrutiny—was crafted with little to no input from the union, which opposed both the list and leave with pay. Now, after that decision went in favor of the league, an appeals court has given similar approval of the commissioner’s powers over player conduct.
Ultimately, as I have always said, these disputes always end up where they started: with the collective bargaining agreement. In the 2011 CBA negotiations, an early priority of the NFLPA was to rein in Goodell. However, that took a back seat to others priorities in the swirl of horse trading that characterizes deal-making, and Goodell retained his powers. Everything that has gone on in court since then has been an attempt by the union to claw back some of those powers. As noted, there have been some successes, but this was a big win for management over labor.
Speaking of the win, we now await the next step. Brady and the NFLPA can attempt to (1) petition the entire Second Circuit for a rehearing en banc (the full group of 22 judges), or (2) petition the United States Supreme Court for review. While I do not pretend to be an appellate lawyer, my sense is that it could be difficult to gain entry into either forum. The NFLPA has said it will review its options, but it now faces an uphill battle.
As for the NFL, the likelihood is that, absent further appeals, it will reimpose the suspension. However, I wonder if they would be open to compromise on this. The league now has the precedent it wanted, an affirmation of the commissioner’s power, and have a ruling in place that will deter players from running to court after receiving an unfavorable ruling from Goodell. So maybe, just maybe, the league would be open to not rubbing Tom Brady’s nose in this and accepting something less than four games. Is that likely? No, but having won its “precedent,” it remains a possibility.
Finally, while the timing and substance of Brady’s contract restructuring may be totally unrelated, he and his representatives may have financially prepared for the suspension. Brady reduced his salary from a scheduled $9 million to $1 million (with the same salary next year) in exchange for receiving a $28 million signing bonus as part of a restructured deal. Assuming the suspension is imposed on the reworked contract—the NFL could challenge the application as to this year’s number compared to last year’s—he will lose a total of $235,000 instead of the $2.12 million he would have forfeited under the terms of his old deal. Again, this may be completely coincidental, although I think not, but the Patriots and Brady worked to save the player almost $2 million.
We are where we started 10 years ago: the Conduct Commissioner lives on. —Andrew Brandt
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