The Pittsburgh Steelers will need to adjust their game plan for their season opener against the New England Patriots on Thursday, Sept. 10. Thanks to a decision by a federal judge on Thursday, Sept. 3, they’re going to face one of the NFL’s elite quarterbacks.
In one of the most significant legal defeats for the NFL in its 95-year history, U.S. District Judge Richard Berman vacated Roger Goodell’s decision to uphold Tom Brady’s four-game suspension (view the entire decision here). By vacating Goodell’s decision, Judge Berman causes Brady’s suspension to be lifted before it was scheduled to take effect on Saturday, Sept. 5. Consequently, Brady will be able to practice with his teammates on Saturday and play against the Steelers in Week 1 and in subsequent games.
The NFL will likely file a notice of appeal with the U.S. Court of Appeals for the Second Circuit and seek an expedited review. As explained below, even if the Second Circuit grants the NFL an expedited review, it would take several months before a decision is made. The NFL might also seek a stay of Judge Berman’s order that would allow the league to suspend Brady during its appeal, but it is unlikely a stay would be granted. Media reports also indicate that the NFL does not intend to seek a stay.
Why Judge Berman ruled for the NFLPA
The simplest explanation for Judge Berman’s decision is that the NFL failed to show that it applied Article 46 of the collective bargaining agreement in a fair and consistent way. Remember, this was a case about process and specifically how the NFL investigated and punished Brady. The NFL had a relatively low bar to meet. Federal judges rarely vacate arbitration awards and only in extraordinary circumstances. Yet Judge Berman identified so many problems in the NFL’s application of Article 46 that he felt compelled to vacate Brady’s suspension.
Among the problems identified by Judge Berman are those that relate to Brady’s arbitration hearing with Goodell on June 23. Goodell denied a request by NFLPA attorneys to question NFL general counsel Jeffrey Pash, who edited the Wells Report before its release, and to access the league’s investigative notes. Judge Berman regarded Goodell’s decisions on these issues as preventing Brady from enjoying a credible opportunity to make his case. Look at it this way: if Brady can’t confront an accuser and study the evidence used to punish him, how can he effectively defend against the accuser’s accusations and the implicating evidence? Judge Berman stressed that denial of access to key witnesses can be grounds to vacate an arbitration award.
Judge Berman also criticized the NFL for how it indistinctly notified Brady of accusations and confusingly explained under which set of rules he was being punished. Take the Wells Report, which used the league’s Integrity of the Game and Enforcement of Competitive Rules policy—a document not collectively bargained with the NFLPA—to find that it was “more probable than not” that Brady had “general awareness” of a football scheme supposedly hatched by two equipment assistants. Later, in his testimony during Brady’s appeal, NFL executive vice president Troy Vincent referenced the Game-Day Operations Manual—also not collectively bargained with the NFLPA—as a crucial document in finding Brady at fault. While the league has also cited Article 46 as grounds to punish Brady, Judge Berman seemed perplexed as to what degree non-collectively bargained documents should be considered sources of authority to punish Brady.
Likewise, Judge Berman criticized Goodell for asserting that Brady received adequate notice of discipline because the four-game suspension matches up the penalty scheme outlined in the collectively bargained steroid policy. The steroid policy, wrote Judge Berman, “cannot reasonably be used as a comparator for Brady’s four-game suspension for alleged ball deflation by others . . . [the steroid policy sets forth procedures] none of which has anything to do with Brady’s conduct and/or his discipline.”
Judge Berman also seemed influenced by the lack of consistency in NFL discipline. In prior instances of players being implicated by equipment tampering, those players were fined, warned or not punished in any way. It was never made clear why Brady was treated differently and significantly worse. Similarly vexing for Judge Berman was how the league’s characterization of Brady’s alleged wrongdoing became harsher without explanation. What began as general awareness of others misconduct has morphed into active involvement in a scheme.
Lastly, Judge Berman raised distinctions between favorable court decisions cited by the NFL and the Brady arbitration. The most crucial distinction is that those decisions involved a neutral arbitrator whereas Goodell was clearly not neutral. While Article 46 permits Goodell to serve as the arbitrator for player appeals, Judge Berman noted that the “law of the shop”—which compels consistency and fairness in arbitration awards—bars Goodell from rendering a decision that may have been compromised by bias. Also, Brady, unlike participants in normal arbitrations, lacked the ability to change the arbitrator even if he could show Goodell was biased.
The NFL can still punish Brady, but only in accordance with Judge Berman’s order
While Judge Berman’s order means that Brady’s suspension is lifted, the NFL can seek to punish Brady again. The judge’s order only pertains to the decision of Goodell to uphold Brady’s suspension—it does not automatically prohibit the NFL from re-punishing Brady.
While it would be unusual, if not unprecedented, for the NFL to punish a player for the same alleged misconduct that was both the subject of a prior suspension and later vacated by a federal judge, that sequence of events would likely not violate the CBA. The most relevant language from the CBA appears in Article 46, Section 4, also known as the “one penalty” clause. This clause prohibits the commissioner and a team from disciplining a player for the same act or conduct. The Patriots have not disciplined Brady. For that reason, the one penalty clause would seemingly not hinder the NFL from re-punishing Brady.
At first glance, Ray Rice’s successful legal saga with the NFL might seem helpful for Brady in the event the NFL tries to “double punish” him. Last November, Rice convinced former U.S. District Judge Barbara Jones, who was acting as a neutral arbitrator, that the NFL wrongfully double punished him for hitting and dragging his then fiancée (now wife) Janay Palmer in a hotel. Goodell had punished Rice twice, first in July 2014 for two games and a second time in September 2014 for an indefinite period. The second suspension was in response to a second video of Rice hitting Palmer in the elevator becoming public and Goodell claiming to have not known about this video or its contents. Jones concluded that Goodell acted in an arbitrary manner when he punished Rice a second time. She highlighted testimony that indicated that the NFL already knew about the full details of the hotel incident before a second video of Rice hitting Palmer became public.
Brady’s situation is very different from that of Rice. Most obviously, it involves alleged tampering with equipment rather than the far more serious topic of domestic violence. But more critical from the perspective of NFL justice are the different roadmaps that lead to so-called double punishment. If Brady is suspended again, it would occur not because the NFL claims to have uncovered new information or evidence, but because a federal judge has vacated the first suspension and the NFL is exercising its right to punish Brady. The NFL does not lose its collectively bargained right to punish a player because a federal judge has vacated an arbitration award.
Of course, one sensible reading of Judge Berman’s ruling is that the NFL should not be able to re-punish Brady because the league never gave him adequate notice in the first place. While the NFL would likely disagree with that reasoning, it is worth considering. One interpretation is certain: If the NFL seeks to punish Brady again, it should only do so in a judicious way. The league must avoid a repeat of the process problems clearly identified by Judge Berman. If instead the league subjects Brady to another series of unfair applications of rules, it could find itself back in court for Tom Brady v. NFL II.
As an aside, the Fifth Amendment’s Double Jeopardy clause—which forbids repeated criminal prosecutions for the same specific offense—would not interfere with the NFL re-punishing Brady. Brady has not been criminally prosecuted, only punished in the form of a suspension by a private association. The Double Jeopardy clause is not implicated in this situation.
A lengthy appeals process awaits
Many football fans want the Deflategate litigation to end. What may have seemed like an interesting topic during the off-season is on the verge of extending into the regular season. If you are among those fans, I have some disappointing news for you: Judge Berman’s order in no way signals the end of the Deflategate litigation. The order only reflects the conclusion of one chapter in a case that will likely extend into 2016 and possibly 2017.
The next stage of the litigation will likely occur when the NFL files a notice of appeal with the U.S. Court of Appeals for the Second Circuit. The NFL has 30 days to do so. As I explained in another article, an appeal will be followed by the selection of three judges to serve on a panel that will eventually hear the NFL’s appeal. Two or three of the panel judges will be drawn from the 23 judges who serve on the Second Circuit, with the possibility that a federal district judge could be assigned to one of the three slots. The ideology of the panel on relevant topics such as labor relations and arbitrator discretion could vary significantly depending on which three judges are selected. Some of the judges who could be picked are considered “labor friendly” whereas others are viewed as more in line with management’s interests.
With the important caveat that we do not yet know the composition of the three-judge panel, the NFL faces an uphill climb in convincing at least two of the three appellate judges that Judge Berman misapplied the law. Although each case presents unique issues and facts, appellate courts typically do not reverse district court judges on their orders to vacate or confirm arbitration awards. The NFL will nonetheless need to persuade at least two of the three panel judges that Judge Berman’s decision to vacate Brady’s suspension reflects a misunderstanding of Article 46 and a disregard of a lengthy set of case precedents where federal district judges almost always confirm arbitration awards.
The NFL might also contend that Judge Berman altered the agreed-upon rules for the settlement hearings and in such a way that influenced the outcome. Both the NFL and NFLPA agreed that “no discovery is needed to adjudicate the parties’ motions” and that a decision would instead be based on the record used by Goodell in Brady’s appeal. Federal judges are also obligated to accord high deference to the fact-finding of arbitrators (in this instance Goodell). While this framework did not categorically preclude Judge Berman from speaking with persons outside the record, it raises questions about the potential influence of those conversations on the judge’s decision.
This seems especially at issue in regards to former New York Jets kicker Jay Feely, who attended Monday’s hearing as a member of the NFLPA’s executive committee. In an interview with CBS Sports Radio host Doug Gottlieb, Feely revealed that he spoke with Judge Berman about an incident in 2009 where the NFL sanctioned a Jets equipment assistant for possibly tampering with a kicking ball. Feely, however, was apparently not investigated by the NFL nor subjected to the “general awareness” standard used by the NFL to judge Brady in the similar fact-pattern of slightly under-inflated footballs. This serves as a powerful legal point in Brady’s favor because it suggests that Goodell has been inconsistent applying rules.
A possible question in an appeal, however, is whether Judge Berman should have even heard about Feely’s experience. One on hand, Feely’s experience might be considered part of the record used by Goodell in judging Brady since Goodell was the commissioner in 2009, when the Jets incident occurred. Feely also attended the hearing for an appropriate reason given that he is a member of the NFLPA’s executive committee—much like it was appropriate for Giants CEO and co-owner John Mara, the chairman of the NFL Management Council Executive Committee, to similarly attend Monday’s hearing. But the NFL might still question whether the NFLPA used Feely’s presence to create the opportunity for Judge Berman to hear new information. Still, one attorney who has litigated against the NFL believes the NFL will probably lose the appeal. "Judge Berman's opinion," Alan Milstein says, "is in my view bulletproof."
To be clear, the appeals process will not include new evidence or any witness testimony. Almost all of the appellate review will consist of the three appellate judges reviewing legal memoranda filed by attorneys for the NFL and NFLPA. There will be an opportunity for brief oral arguments, where the lead counsel for each side makes his or her best case to the three judges. In the Second Circuit, those arguments are typically limited to merely 10 minutes and often the judges interrupt the attorneys with questions.
In terms of timing, the typical appeal in a U.S. court of appeals takes eight to 12 months. There are many factors that influence timing, but it is safe to say that the NFL’s appeal will likely not be decided until sometime next spring or summer. The NFL could petition the Second Circuit for an expedited appeal, which would reduce the length of the timeline but likely still take two to three months. According to the Second Circuit’s relevant rules for expedited review, the NFL would have up to 35 days to file a brief, followed by the NFLPA having 35 days to respond, and followed lastly by the NFL having 14 days to respond to the NFLPA’s brief. This process of filing briefs could take anywhere between three days and 84 days. If the NFL wanted to speed up the clock by as much as six weeks, it could quickly file its briefs within one day instead of the allotted 35- and 14-day periods. Still, the panel would need to set aside time for a session of oral arguments with the attorneys and, of course, time to make a decision.
NFL could also seek a stay, but is unlikely to obtain one
A stay, as I explained more fully last week, would prevent Judge Berman from carrying out the order—in this case the vacating of Goodell upholding Brady’s suspension—until an appeal is decided. If the NFL is granted a stay, Brady would have to serve his suspension despite being the winner in Judge Berman’s decision.
Initial media reports indicate that the NFL will not seek a stay. If those reports prove incorrect, the NFL would first need to petition a stay from Judge Berman. If he denies it, the NFL would try to obtain one from the Second Circuit.
Stays are difficult to obtain and are considered extraordinary measures. The NFL also would not seem to have an especially strong argument for a stay. This is particularly apparent in regards to a showing of “irreparable harm.” There are four prongs to a stay, and one involves whether the NFL can show it would suffer irreparable harm if a stay is not granted. Irreparable harm generally refers to harm that can’t be remedied by a court order and probably will occur before an appeal is decided.
The NFL would contend that the commissioner’s collectively bargained authority to punish players would be endangered if a stay is not granted. The league might stress that players will now go to court to challenge any imposition of a penalty.
The NFLPA, however, would have a compelling argument in response. First, the NFL wouldn’t lose the ability to suspend Brady if he’s able to play in the first four games of the season. If the league wins the appeal, it could carry out the suspension at a later date—perhaps at the start of the 2016 regular season. Second, through the NFLPA, suspended players have always had the option to challenge disciplinary matters in court; Brady’s win doesn’t change that.
How the ruling impacts the NFLPA, NFL owners and Robert Kraft
Judge Berman’s ruling is technically limited to a narrow legal question—whether Goodell lawfully upheld Brady’s suspension. The ruling, however, has the potential for far-reaching consequences.
The NFLPA is emboldened by another court ruling that both repudiates the NFL’s system of justice and raises serious questions about how the NFL processes disciplinary matters. The NFLPA appears to be accomplishing in court what it could not accomplish at the bargaining table. The union’s win in the Brady case follows a win in the Adrian Peterson case earlier in 2015 (the NFL has appealed Peterson’s decision to the U.S. Court of Appeals for the Eighth Circuit). The NFLPA also prevailed in the 2014 arbitration award for Rice and in the 2012 arbitration award for four Saints players whom Goodell had suspended as part of the Bountygate controversy. While each of these disciplinary matters raises questions about dissimilar fact patterns and unique applications of rules, they collectively suggest that Goodell’s supposedly sweeping authority under Article 46 can be successfully challenged.
Some NFL owners could demand that the league rethink the merits of Article 46 and how it has been implemented. Perhaps Article 46 supplies Goodell with too much discretion for his own good. Four attorneys—Judge Berman (Brady case), U.S. District Judge David Doty (Peterson case), former Judge Jones (Rice arbitration) and former NFL commissioner Paul Tagliabue (Saints players arbitration)—have now expressed serious reservations about the manner in which the NFL has applied Article 46. The league, however, cannot unilaterally modify Article 46 since it is a collectively bargained term. Any modification would require assent by the NFLPA. With the current CBA not set to expire until after the 2020 season, it will be several years before the NFL and NFLPA engage in a new round of collective bargaining. Usually modifications to the CBA are not made in between CBAs, but they are possible. The league’s personal conduct policy was adopted in 2007, several years before the NFL and NFLPA began negotiations for a new CBA.
Patriots owner Robert Kraft is obviously thrilled that Brady, his franchise’s best player, will not miss any games. Kraft, though, likely remains aggravated by the NFL’s severe punishment of his team for allegations contained in the Wells Report. In addition to a $1 million fine, the Patriots will lose their first-round pick in the 2016 NFL Draft and fourth-round pick in the 2017 NFL Draft. In May, Kraft reluctantly declined to challenge the punishment. He cited the “collective good” of the 32 franchises. Kraft’s explanation referred to the idea that even if the Patriots might be worse off by Kraft accepting the punishment, the league as a whole is healthier when owners aren’t openly challenging the commissioner’s authority. Kraft’s decision was met with scorn by many Patriots fans, but the 74-year-old billionaire recognized that any challenge would have faced steep odds. For one, Kraft knew that either Goodell—the same person who commissioned the Wells Report and who ultimately determined the Patriots’ punishment—or a designate of Goodell’s choosing would rule on any appeal. Second, as I explained back in May, the league constitution and other documents signed by owners as a condition of an owning an NFL franchise make it extremely difficult for those owners to sue the league.
Kraft would be in a difficult position to now renege on his earlier acceptance of the Patriots’ punishment.
The league’s deadline for the Patriots appealing passed in May. So far, it does not appear that the team will attempt to revoke Kraft’s acceptance. Jonathan Kraft, the president of the Patriots, told reporters Thursday evening that it is “not our intention” to commence a fight over the team’s penalty.
Still, the Patriots have not ruled out a challenge. If they were to pursue one, Robert Kraft would assert that his acceptance was based on false pretenses and misleading assurances. He would further contend that his acceptance should be nullified and that the deadline for his team to appeal should be tolled (extended) to present day. To advance such an argument, Kraft would highlight how Judge Berman’s ruling clearly casts doubts on the Wells Report (at least as it relates to Brady). Kraft could even sue the NFL if the league rejected his pleas for an appeal. Such a lawsuit, however, would be unlikely to prevail.
While it would be very surprising for Kraft to sue the NFL, it would be less surprising if he at least informally asks other owners to urge Goodell to reconsider the Patriots’ penalty. To be sure, those owners are Kraft’s competitors and may not want to help him out. Kraft, however, could remind them that they might find themselves in his shoes one day if what he describes as an excessive and unwarranted penalty is not corrected.
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. This fall he is teaching 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 teaches “Intellectual Property Law in Sports” in the Oregon Law Sports Law Institute.