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Eight things to expect ahead of Tom Brady's third district court hearing

Eight things to expect ahead of Tom Brady's third district court hearing

Will the Deflategate litigation finally run out of air this week? Don’t hold your breath.

On Monday, U.S. District Judge Richard Berman will preside over the third and likely final district court hearing on whether NFL commissioner Roger Goodell lawfully upheld Tom Brady’s four-game suspension. Assuming a settlement is not reached in the meantime, Judge Berman is expected to make a decision by Friday, Sept. 4. Any decision would be subject to appeal by either side to the U.S. Court of Appeals for the Second Circuit.

Here are eight keys for what to expect on Monday and beyond:

I. This is the last time the attorneys can persuade Judge Berman: Expect both sides to bring their “A” game

Like in their previous two hearings, attorneys for the NFL and NFLPA will meet in the Daniel Patrick Moynihan U.S. Courthouse for a mixture of public and private discussions. As before, Judge Berman will ask the attorneys questions about their lines of reasoning and he’ll offer brief commentary on their responses. Brady and Goodell have been ordered to attend Monday’s hearing, although neither is expected to play any role beyond sitting near the attorneys. Similarly, neither witness testimony nor introduction of evidence is expected. Instead, Monday’s session will entail a new round of discussion and debate between Judge Berman and the attorneys. This time, though, both sides will feel much more pressure: Judge Berman is likely on the verge of making a decision.

Judge Berman will likely center Monday’s discussion on relatively narrow and technical questions of law. By this point, the judge is already well versed on the NFL and NFLPA’s core arguments. In sum, the NFL contends that Article 46 of the collective bargaining agreement sufficiently accorded Goodell with sweeping discretion when he adopted the role of hearing officer (arbitrator) in presiding over Brady’s appeal, and that both federal law and case precedent compel Judge Berman to honor that deference. The NFLPA, in contrast, asserts that the totality of problems that arose in the NFL’s punishment of Brady establish that the league violated the law of the shop, which requires fairness and consistency in arbitration awards. The only remedy to correct the resulting harm, the NFLPA reasons, is for Judge Berman to vacate Goodell’s decision and consequently lift Brady’s suspension.

While it is impossible to predict which questions Judge Berman will pose on Monday, there’s a good chance he’ll address arguments recently raised by both sides.

II. NFL’s key arguments for Monday’s hearing

Earlier this week, the NFL filed a letter in which NFL attorney Daniel Nash attempted to debunk the relevance of 19 court decisions previously cited by the NFLPA. The 19 decisions all involve a federal judge vacating an arbitration award, which is the exact remedy Brady seeks. Nash wrote that none of these 19 decisions are on point, since, in Nash’s view, they concern an arbitrator either ignoring an express term in the CBA or basing an award on a concept that falls outside the CBA. According to Nash, neither of these circumstances exists for Brady. Nash insists that Brady was punished in accordance with the far-reaching language of Article 46, which, as worded, permits player punishment for any conduct the commissioner regards as “detrimental to the league.” Nash further tried to distinguish the 19 decisions by stressing they involved a neutral arbitrator unlike Goodell.

To bolster its legal arguments, the NFL has underscored the U.S. Supreme Court’s 2001 decision in MLBPA v. Garvey. This case centers on former San Diego Padres first baseman Steve Garvey, who was the National League’s MVP in 1974 and a 10-time All-Star, and his arbitration over whether he was a victim of MLB collusion (in the late 1980s some MLB teams conspired to suppress player wages). A neutral arbitrator rejected Garvey’s claim, raising questions about his evidence. Garvey then petitioned a federal district judge and later a three-judge federal appeals court to vacate the arbitrator’s award. Garvey convinced the appellate court to do so, as it reasoned that the arbitrator’s assessment of evidence “bordered on the irrational.” The U.S. Supreme Court, however, reversed the appeals court and held against Garvey, concluding that even when an arbitrator’s decision is impacted by factual errors or misunderstandings, a federal court must not disturb the award. Garvey v. MLBPA is an excellent decision for the NFL because it accentuates the high threshold necessary for a federal judge to vacate an arbitration award. Yet as explained below, the NFLPA can raise important distinctions between the Garvey case and Brady’s case. One significant distinction is that the arbitrator in Brady’s arbitration—Goodell—was clearly not neutral.

III. NFLPA’s key arguments for Monday’s hearing

In a letter responding to Nash, NFLPA attorney Jeffrey Kessler dismissed Nash’s reasoning as ignoring both law and precedent. During Monday’s hearing, expect Kessler to argue that Brady was punished for concepts that clearly fell outside the CBA. Along those lines, the NFLPA has highlighted the multiple sources of rules cited by the NFL to punish Brady. For instance, attorney Ted Wells wrote that his investigation was governed by the Policy on Integrity of the Game and Enforcement of Competitive Rules, while NFL executive vice president Troy Vincent, the author of the letter to Brady announcing his suspension, cited the Game Operations Manual as a key document. As explained in an earlier column, neither the Policy on Integrity nor the Game Operations Manual was subject to collective bargaining. This suggests that neither document authorized Brady’s suspension and consequently Brady lacked adequate notice as to what rules governed his punishment.

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The NFLPA also objects to the NFL’s increasingly damning characterizations of Brady’s alleged wrongdoing. Without clear explanation or the disclosure of new evidence, Brady’s supposed role in a so-called ball deflation conspiracy has worsened from “general awareness” to active scheming. Kessler will surely remind Judge Berman on Monday that altering the rationales for punishing Brady goes to the fairness of the disciplinary process.

In addition, watch for Kessler to also stress the unique qualities of Goodell serving as the hearing officer (the arbitrator). Unlike in other cases cited by either the NFLPA or NFL, including the aforementioned MLPBA v. Garvey, Goodell was not merely functioning as the arbitrator. He was also the architect of the NFL’s investigation and the person who decided Brady’s punishment. While Article 46 generally permits this unusual arrangement, the NFLPA contends that it was fundamentally unfair for it to be employed in Brady’s appeal. This is especially true, the NFLPA contends, given that unlike in normal arbitrations, Brady had no ability to demand Goodell be replaced on grounds he was biased. To attempt to show that bias influenced Brady’s appeal, the NFLPA has objected to the inability of Brady’s attorneys to speak with a particular witness—NFL general counsel Jeff Pash, who edited the Wells Report—during Brady’s appeal hearing.

IV. Judge Berman could issue his decision as soon as Monday

The NFL and NFLPA have asked Judge Berman to issue a decision by Friday, Sept. 4, which is one day before Brady’s suspension is set to begin. If Brady’s suspension starts, he would be barred from the Patriots’ facilities and unable to practice. Judge Berman has not guaranteed that he will make a decision by Sept. 4. In fact, he recently implied that his decision could necessitate more time. The Patriots season-opener will be played on Thursday, Sept. 10. If Brady is serving a suspension on that date, backup quarterback Jimmy Garoppolo is expected to start in his place.

The odds are very high that Judge Berman will issue a ruling by Sept. 4th. He surely realizes the importance of that date to the parties. Also, although the “correct” decision in this case is debatable, the underlying facts and arguments are not especially complicated. It is possible that Judge Berman has already made up his mind and has only delayed announcing a decision in hopes that the parties reach a settlement in the meantime.

If Judge Berman is convinced by Monday that the parties simply won’t settle, it’s possible that he could issue a ruling “from the bench.” This refers to a judge orally announcing his decision to the parties while they are in court or the judge letting the parties know how he will later rule in a written order. Attorney Alan Milstein, who has litigated against the NFL and tried cases before Judge Berman, believes there is a good chance Judge Berman will announce his decision on Monday.

“Considering the parties have thus far rejected settlement,” Milstein observes, “I see no other reason for the hearing than to end this litigation.”

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V. If Judge Berman rules for Brady, Brady would be eligible to play, but NFL might seek to punish him again

If Judge Berman rules for Brady, it would mean that Goodell’s decision to uphold Brady’s suspension is vacated. Consequently, Brady’s suspension would be lifted. He would then be eligible to play against the Steelers on Sept. 10 and in other games thereafter.

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But the NFL could still complicate Brady’s eligibility to play games. Specifically, the NFL could seek to punish Brady again, since the vacating of Goodell’s decision and the lifting of Brady’s suspension would not automatically prevent the NFL from launching a new disciplinary investigation. In order for the NFL to be barred from re-punishing Brady, Judge Berman’s order would need to expressly preclude the NFL from punishing Brady for Deflategate-related matters.

Alternatively, Judge Berman could vacate Goodell’s order and then impose procedural limits on the NFL should it seek to re-investigate Brady. For instance, the judge could instruct the NFL that it can only use a neutral arbitrator, whether it’s former NFL commissioner Paul Tagliabue (who was the arbitrator for the Bountygate appeals) or former U.S. District Judge Barbara Jones (the arbitrator for Ray Rice’s appeal) or someone similarly without a stake in the outcome. As another variation, Judge Berman might stay (delay) the carrying out of Brady’s suspension until an appeal before the U.S. Court of Appeals for the Second Circuit could be heard.

Although it is possible that Judge Berman will issue a multilayered order such as one described above, it’s unlikely. Many judges perceive the appropriate scope of their review as limited to the specific legal questions presented in a case. Remember, the NFL and NFLPA have asked Judge Berman to confirm or vacate the arbitration award, not take additional steps that might be construed as modification of the award or, more dramatically, a transformation of Article 46 of the CBA. Judge Berman also knows that if any part of his order “goes too far,” his entire order would be more susceptible to being reversed on appeal.

VI. How the NFL would appeal a loss to the U.S. Court of Appeals for the Second Circuit

While it is unlikely the NFL would launch a new investigation into Brady, it is very likely the league would file an appeal of Judge Berman vacating Goodell’s decision. Some have speculated that the NFL might drop the case if Judge Berman rules for Brady. The reasoning most often mentioned is that team owners would pressure Goodell to “let it go” and focus instead on the business of football. I doubt Goodell would do so. He has staked a significant portion of his legacy as NFL commissioner on the aftermath of Deflategate. Also, if Goodell drops the Brady case, it would create incentives for future suspended players to go to court.

Instead, I believe the NFL would appeal a loss to the U.S. Court of Appeals for the Second Circuit, which would assign three judges to serve on an appellate panel. The NFL would also request an expedited review from the Second Circuit. An “expedited review,” however, would not mean an instantaneous one. Even if the Second Circuit agrees to act quickly, it would likely take a least a couple of months before rendering a decision. If the request to expedite is not granted, the Second Circuit would probably not make a decision until spring or summer 2016. Moreover, if Brady wins before Judge Berman, but loses the appeal, he would serve his four-game suspension at some later date—perhaps while the Patriots are playing crucial games this December or perhaps to start the 2016 regular season.

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The odds of Brady winning before Judge Berman but losing on appeal are impossible to calculate. Although federal appeals courts sustain most decisions by district court judges in arbitration award cases, Brady v. NFL is unpredictably unusual. It involves a bizarre set of facts but more significantly there is no available data on how federal appeals courts treat arbitration awards where the arbitrator was both not neutral and played multiple roles in the disciplinary process. Goodell’s role as the so-called “judge, jury and executioner” of NFL justice is unusual, to put it mildly.

Some have speculated that since the NFL won before the Second Circuit in an appeal of Maurice Clarett’s age eligibility rule case in 2004, the NFL would be poised to defeat Brady in an appeal (as a disclosure, I was a member of Clarett’s legal team). This logic is badly misplaced.