With Tuesday's announcement that NFL commissioner Roger Goodell has upheld Tom Brady’s four-game suspension, there is increasing speculation that Brady and the National Football League Players’ Association will go to court unless Goodell vacates the suspension. In all likelihood, Brady and the NFLPA have already written the legal filings necessary to petition a federal judge to intervene on their behalf. Their only decision now is whether to file them.
What kind of case would they have?
Brady and the NFLPA would argue that the NFL is in violation of federal labor and arbitration laws. In doing so, they would contend the league has violated what’s known as the “law of shop,” which refers to general requirements of fairness and consistency in the interpretation of arbitration agreements. As explained more fully in another SI.com article, Brady would assert that even though the collective bargaining agreement generally empowers Goodell to hear player appeals, the law of shop should have barred Goodell from hearing Brady’s appeal. Brady would demand that a court vacate the fine or at least temporarily restrain the NFL from imposing it until a trial could occur.
Brady’s case would be about process, not Deflategate, and a judge, not a jury, would decide the case.
Keep in mind, Brady’s case would not center on the underlying accusations against Brady and the Patriots. Also, neither Brady nor the NFL would share evidence with each other, and no jury would be empaneled to render a decision. Instead, a judge would hear legal arguments about the lawfulness of the process used by the NFL to judge Brady. While in theory a jury might hear Brady’s case sometime over the next couple of years, the odds of that occurring are extremely low. This dispute will almost certainly be resolved long before a jury trial would occur.
Some have speculated that Brady might seek review by the U.S. District Court for the District of Massachusetts. This would be a possible venue for a variety of reasons, including the fact that most of the alleged facts in Deflategate took place in Foxboro, Mass. Another option for Brady would be to file in the U.S. District Court for the District of Minnesota and hope that the court’s chief judge, U.S. District Judge John R. Tunheim, assigns the case to U.S. District Judge David Doty, who is considered player-friendly. The NFL would likely object to Brady filing in Minnesota, but the league and players have a long history of resolving disputes there.
Brady and the NFLPA would have excellent legal counsel in court. Jeffrey Kessler and his law firm partner David Greenspan would likely be retained for any court filing. Kessler led Brady’s appeal before Goodell and both he and Greenspan won Adrian Peterson’s case in court.
If Brady goes to court, he would likely assert four core arguments:
I. Goodell was inherently biased and should not have heard Brady’s appeal.
Brady could offer a logical argument that Goodell had no business hearing his appeal and Goodell’s decision to do so violated the law of shop. Brady would assert that Goodell has been a central figure in the Deflategate controversy and thus is inherently biased in reviewing Brady’s appeal. Goodell, Brady would stress, supervised the same referees who weren’t sure which pressure gauge they used to measure PSI and who failed to record PSI levels before the AFC Championship Game. According to former NFL vice president of officials Mike Pereira, Goodell’s office recently ordered significant changes to how game footballs will be monitored. This seems like an implicit admission by Goodell that league rules governing how NFL referees protect and measure footballs were flawed at the time of the AFC Championship Game. Goodell also hired Ted Wells, an attorney whose strategies for investigating Deflategate have come under significant fire from scientists and other informed parties. Goodell, in sum, seems intertwined with the same controversy that gave rise to Brady’s suspension.
Brady would also seem likely to highlight false—and highly damaging—leaks from purported “league sources” to selected journalists in the days that followed the AFC Championship Game. If those “league sources” were in fact league officials, Goodell would be responsible for his subordinates leaking information to media. All of these factors suggest that Goodell has been too conflicted in Brady’s appeal to fairly evaluate Brady’s arguments.
More recent reporting highlights other evidence that Goodell has been anything but a detached and neutral observer. Multiple media reports indicate that owners of rival teams—including Indianapolis Colts owner Jim Irsay and Baltimore Ravens owner Steve Bisciotti—have aggressively pressured Goodell to sustain Brady’s four-game suspension. Rival ownership groups are far from unbiased: they presumably want to see Brady sit in order to gain a competitive advantage over the Patriots. While Bisciotti has already denied these reports and while it is unclear what impact any post-appeal lobbying has played in Goodell’s reasoning, it is worth remembering that Goodell works for the 32 ownership groups. If some of his bosses are pressuring him to make a particular decision, it is plausible that Goodell’s ability to be fair has already been irreparably compromised. If so, Brady would have a good argument that the law of shop has been violated.
Brady could also attempt to link Goodell's arguable conflict of interest to Goodell's decision to severely suspend Brady for four games. Brady’s suspension seems especially harsh when considering that Brett Favre was only fined $50,000 in 2010 for a failure to cooperate in a league investigation. Despite Favre only receiving a fine, the NFL has cited Brady’s alleged failure to cooperate in a league investigation as a key rationale for the four-game suspension. Brady could also stress that other instances of football tampering to assist NFL players have not led to punishment. For instance, in a chilly game played last November in Minneapolis (Minn.), the Carolina Panthers and Minnesota Vikings were caught using ball boys to impermissibly heat footballs. No player on either team was punished. Brady thus has a sensible argument that his four-game suspension is excessive when viewed in the context of precedent. Brady could contend that Goodell’s determination of a punishment was corrupted by self-interest and a lack of objectivity.
II. Troy Vincent’s ill-defined role violated the CBA.
Brady would also highlight the unclear role played by Troy Vincent as evidence of a flawed process. Vincent originally levied Brady’s original punishment through a letter dated May 11, 2015. In the letter, Vincent referenced that “the Commissioner has authorized me to inform you of the discipline, pursuant to his authority under Article 46 of the CBA…” This language suggests that Vincent’s role was ministerial rather than substantive and designed merely to relay a ruling by Goodell. It is uncertain why Goodell would not have written the letter to Brady himself—unless Goodell had, without express support from the CBA, delegated authority to Vincent. A cynic might surmise that Goodell deployed Vincent to create distance between himself and the punishment of a highly popular player.
III. Brady was judged under policies that fell outside of the CBA.
Brady would also object to the standard of proof used to judge his alleged misconduct. Much has been made of Wells concluding that it was “more probable than not” that Brady had “general awareness” of a ball-deflation scheme. Neither the “more probable than not” nor “general awareness” standards are mentioned in the CBA. In defense of Wells, the “more probable than not” standard is mentioned in a different league document—the Policy on Integrity of the Game and Enforcement of Competitive Rules.
The Policy on Integrity, however, was not collectively bargained. The Policy on Integrity is also not mentioned by name in the 301-page CBA and rules about football preparation appear intended for teams rather than players. Brady could thus insist that he has been evaluated by an impermissible standard.
Brady would further highlight how the CBA omits any language compelling him to turn over his cell phone, text messages or emails. Brady would stress that an obligation to share personal belongings with the NFL should be treated as an invasive request and one that requires written consent by the NFLPA.
IV. Goodell refused to issue a ruling “as soon as practicable” in violation of the CBA.
Lastly, Brady would contend that Goodell has intentionally delayed announcing a decision on Brady’s appeal in order to make it harder for Brady to obtain timely relief from a court. There are seven weeks between today and the start of the regular season, and that may not be enough time for Brady to secure a ruling from a court. The litigation process takes time. Each side would be provided weeks to write briefs.
There would likely be opportunities for oral arguments as well. Whichever judge is assigned to hear Brady’s case would have other cases on his or her docket. Some of those cases would concern far more meaningful matters than whether a professional football player is eligible to play and those cases would be prioritized over Brady’s case. As a point of illustration, Peterson and the NFLPA petitioned a federal court on December 15, 2014 and the court made its decision more than nine weeks later on February 26, 2015. Now again consider that the 2015 NFL regular season is only seven weeks away. Time is running out for Brady to get assistance from a court.
Plus, last Friday Bleacher Report’s Jason Cole reported that the NFL intends to “wear down” Brady into accepting a reduced punishment. Under Article 46, Goodell has to render a decision “as soon as practicable.” This vague language affords Goodell substantial discretion on timing, but vague does not mean limitless. Goodell has a good faith obligation to adhere to “as soon as practicable”—not “as soon as Brady is worn down.”
The NFL’s defense strategy
The NFL would be confident that Brady’s best arguments play better in the court of public opinion than in the court of law. Unfortunately for Brady, federal courts are required by law to accord high deference to arbitration awards. Goodell’s forthcoming decision on Brady’s appeal will constitute such an award. The normal standard of review for a federal court review advantages Goodell: so long as the arbitrator (Goodell) is applying the CBA in a plausible way and acting within the scope of his authority, the court should only overturn an arbitration award if a serious error occurred.
I. Brady should blame his union, not the NFL, for Article 46.
The NFL would first maintain that Brady should complain to his union for agreeing to give Goodell the authority that lies at the heart of Brady’s legal theory. According to Article 46 of the CBA, Goodell enjoys sweeping discretion to hear player appeals over personal conduct matters. Article 46 also does not obligate Goodell to be neutral or impartial when he acts in the capacity of a hearing officer. In fact, there is no language in Article 46 that references impartiality—unlike Article 16, which contemplates an impartial arbitrator for other types grievances. Goodell presiding over Brady’s appeal does not appear to break any actual rule negotiated by the NFL and NFLPA. Along those lines, although Brady’s punishment might seem unnecessary and while the scientific validity of an intentional ball deflation scheme might seem doubtful, those are likely insufficient justifications for a federal court to overrule Goodell on a CBA matter.
II. Brady’s challenge is structurally weaker than those of Ray Rice and Adrian Peterson.
The NFL would also carefully distinguish Brady’s challenge from challenges brought by Peterson and Rice. Peterson successfully argued that he was retroactively punished by a new policy, while Rice successfully argued that he was double punished. Peterson and Rice thus relied on straightforward theories. Brady, in contrast, would be required to argue a more amorphous idea that Goodell was so conflicted in Deflategate that he should not have served as the presiding officer in Brady’s appeal—despite Article 46 expressly saying he could serve as the presiding officer.
III. Some of Brady’s purported evidence can’t be proven in court.
Brady’s arguments are in part premised on allegations that seem difficult to prove in court. This is especially true of media leaks, including those from “league sources.” Leaks are of limited value to Brady unless he can prove the identity of the sources. Journalists who have received leaks are under a professional obligation to not reveal their sources. Courts also rarely force journalists to reveal sources under threat of incarceration, and typically only do so in matters of national security—not in matters of football security.
IV. A Brady victory in court could prove brief and counter-productive.
Even if Brady succeeds in convincing a court to vacate or restrain the NFL from suspending him, the victory could prove short-lived and ill timed. As it has done in Peterson’s case, the NFL would appeal a Brady victory in a federal district court to a federal appeals court. Both Peterson and the NFL still await a decision by a federal appeals court, which is not surprising since appeals courts often take months, if not longer, to render a decision. As a result, Brady could “win” before a federal district judge and then months later—possibly in November, December or January—“lose” before a federal appeals court.
Brady might also have to eventually share with the NFL all of the texts and emails he was unwilling to share during the Wells investigation. The same principle, of course, applies to the NFL and its officials, who would likewise be required to share information with Brady’s attorneys. This unwanted sharing would be part of what’s called pretrial discovery, where a court orders each side to answer questions under oath and provide requested materials. To be clear, pretrial discovery would not occur for months, if it occurs at all. Pretrial discovery would also not take place prior to any court hearing for a petition by Brady that his fine be vacated or restrained. Instead, pretrial discovery would take place until after a motion to dismiss hearing, which would not occur for months, and only if a court denies the NFL’s motion to dismiss.
Brady could also sue the NFL for defamation
Alternatively, Brady could file a defamation lawsuit against Goodell, Vincent and Wells and contend that these men have harmed his reputation through false accusations. Former New Orleans Saints linebacker Jonathan Vilma adopted such a strategy to combat accusations made of him by Goodell in regards to the Bountygate scandal. Brady would seem poised to file any defamation lawsuit in Massachusetts, where the jury pool would include many Patriots fans and where the underlying dispute took place.
If Brady had nothing to do with an intentional ball deflation scheme, or if no such scheme occurred, Brady would have a sound argument that he has been wronged. Brady could offer expert testimony that his endorsement income has suffered. He could also introduce evidence that his family has been adversely affected by the controversy. For instance, a recent Boston Globe story discussed resistance by a country club to an application by Brady and his wife, Gisele Bundchen for membership in part due to the media frenzy caused by Deflategate.
While a trial for a defamation lawsuit likely wouldn’t take place until next year (if it takes place at all), Brady could use pretrial discovery to force NFL officials to testify under oath.
There are several downsides. Most notably, Brady is a public figure, and under the law, a public figure has an added hurdle in a defamation lawsuit. Such a figure must prove “actual malice,” meaning Brady would need to show that NFL officials lied intentionally or knowingly. Proving intent or knowledge is often difficult, especially in a fact-pattern where much of the evidence would be based on confidential leaks to media.
A defamation lawsuit would also take months, if not years, to play out and any success for Brady would only lead to monetary damages. Brady, whose net worth is reportedly about $120 million and whose wife reportedly has a net worth of about $380 million, may not find the potential payoff of hundreds of thousands of dollars or even millions of dollars in damages worth a long-term and acrimonious legal battle.
While pretrial discovery would only occur after a court declines to dismiss Brady’s lawsuit—which means months from now, if ever—Brady would become subject to pretrial discovery and potentially required to share his emails and texts to locker room assistants Jim McNally and John Jastremski.
The odds are heavily against Brady filing a defamation suit. If he goes to court, it is far more likely he would seek to stop the NFL from carrying out a suspension.
Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. In the fall 2015 semester, he will teach an undergraduate course at UNH titled “Deflategate.” McCann is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and he will be teach “Intellectual Property and Media in Sports Law” at the 2015 Oregon Law Sports Law Institute.