Thursday morning's ruling from Judge Richard Berman to vacate the NFL's four-game suspension of Tom Brady was the latest in a long string of embarrassments for the league, commissioner Roger Goodell, and general counsel Jeff Pash. It was the latest in a long string of incidents proving beyond a shadow of a doubt that Goodell, who in this case commissioned an allegedly independent report with conflicts all over the place, made himself the “neutral” appeal arbitrator despite screaming conflicts of interest, refused to engage in a full and fair appeal hearing, may have leaked incorrect and improper information to the media regarding the footballs Brady may or may not have deflated, and once again came across as clueless and clownish when it was time for his opponent to face him in an actual court of law has no business handing out discipline in league matters. At one point before Judge Berman, Goodell actually compared ball deflation to steroid use, which brought open ridicule from the judge, and was specified as ridiculous in Berman's ruling.
“The Court is fully aware of the deference afforded to arbitral decisions, but, nevertheless, concludes that the Award should be vacated,” Judge Berman wrote in his decision. “The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four-game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL Executive Vice President and General Counsel Jeff Pash; and (C) denial of equal access to investigative files, including witness interview notes.”
As Judge Berman notes, Brady was caught between the actual alleged violation of tampering and what became the real issue for the NFL. When Brady refused to turn over his phone to the league, and actually destroyed the phone in a matter that may or may not be related to the case, the NFL's primary issue became about the player's lack of cooperation. Which fits in nicely with Goodell's history—he's always been more interested in player capitulation than guilt or innocence in any particular case.
When Brady's lack of cooperation became the focus, Goodell tried to move the goalposts with the steroid comparison, which brought more rebuke in the ruling.
“[T]he closest parallel of which I am aware is the collectively bargained discipline imposed for a first violation of the policy governing performance enhancing drugs,” Goodell is quoted as saying the ruling. “In our most recent Collective Bargaining Agreement, the parties (a) agreed to continue that level of discipline for a first violation [i.e., four-game suspension] and (b) further agreed that a player found to have used both a performance enhancing drug and a masking agent would receive a six-game suspension. The four-game suspension imposed on Mr. Brady is fully consistent with, if not more lenient than, the discipline ordinarily imposed for the most comparable effort by a player to secure an improper competitive advantage and (by using a masking agent) to cover up the underlying violation.”
The judge wasn't buying it; nor should he have done so.
“The Court finds that the NFL's collectively bargained for ‘Policy on Anabolic Steroids and Related Substances’ (‘Steroid Policy’) is sui generis,” Berman wrote, invoking the legal term applying to a case which must be decided on its own independent merits. “It cannot, as a matter of law, serve as adequate notice of discipline to Brady. It also cannot reasonably be used as a comparator for Brady's four-game suspension for alleged ball deflation by others in the first half of the AFC Championship Game and for non-cooperation in the ensuing Investigation. The Steroid Policy is incorporated into the 2014 Player Policies, which sets forth in great detail ‘testing procedures,’ ‘procedures in response to positive tests or other evaluation,’ ‘suspension and related discipline,’ ‘appeal right,’ ‘burdens and standards of proof,’ and ‘discovery,’ none of which has anything to do with Brady's conduct and/or his discipline.
“The Court is unable to perceive ‘notice’ of discipline, or any comparability between a violation of the Steroid Policy and a ‘general awareness’ of the inappropriate activities of others, or even involvement in a scheme by others to deflate game balls on January 18, 2015, and noncooperation in a football deflation investigation.”
Worst of all, Berman actually cited another Goodell bungle—when former commissioner Paul Tagliabue had to come in and clean up the mess Goodell created in the BountyGate saga—as precedent against the league in the Brady case. When you are the final internal arbiter of justice in a multi-billion-dollar corporation, and you've essentially established your own bad precedents along the way, the issue of general competence has to come into question. Brady's legal team, who clearly saw a four-lane-wide hole in the NFL's specious argument, cited this passage from Tagliabue's final ruling on the BountyGate mess:
“In December 2010, the NFL fined Brett Favre $50,000—but did not suspend him—for obstruction of a League sexual harassment investigation. Although not entirely comparable to the present matter, this illustrates the NFL's practice of fining, not suspending a player, for serious violations of this type. There is no evidence of a record of past suspensions based purely on obstructing a League investigation. In my forty years of association with the NFL, I am aware of many instances of denials in disciplinary proceedings that proved to be false, but I cannot recall any suspension 24 for such fabrication. There is no evidence of a record of past suspensions based purely on obstructing a League investigation.”
There was no way for Berman to conclude but that the NFL once again handed out its discipline in a rabidly inconsistent and unfair fashion, in violation of the very CBA Goodell chose to invoke. Berman added this zinger: “Because there was no notice of a four-game suspension in the circumstances presented here, Commissioner Goodell may be said to have ‘dispense[d] his own brand of industrial justice.’”
The NFL is taking its opportunity to appeal this decision, but if the league is smart, it will take a serious, reasoned step backward and look harshly and objectively at its own measures and standards of justice, as the pattern of getting its ass kicked repeatedly when placed under the microscope of any third party continues.
The recent losses for Goodell and his legal goons, led by Pash, are astonishing. They lost the Adrian Peterson case in court. The Ray Rice situation was a complete embarrassment from start to finish, from the original two-game suspension to the subsequent overreaction, to Goodell's ham-fisted explanations of the league's thoughts on domestic violence, and the league's subsequent back-doored and unenforceable policies against those players accused of domestic violence. BountyGate was perhaps the worst example of Goodell's “Ready, fire, aim” worldview, and the hits just keep on coming.
In the end, this ruling is less about Tom Brady or the Patriots, who have their quarterback back after all kinds of unnecessary collateral damage. It's not about Brady's legacy, tainted fairly or unfairly as it may have been. It's not about the fact that throughout this embarrassment of a process, Goodell lost one of his most powerful allies in Patriots owner Robert Kraft, though it probably should be. And though he was speaking from his own specific annoyance, what Kraft said in July about Goodell's standards of fairness speaks to the far larger and more global point.
“I have come to the conclusion that this was never about doing what was fair and just,” Kraft said. “Back in May, I had to make a difficult decision that I now regret. I tried to do what I thought was right. I chose not to take legal action. I wanted to return the focus to football. I have been negotiating agreements on a global basis my entire life. I know that there are times when you have to give up important points of principle to achieve a greater good.
“I acted in good faith and was optimistic that by taking the actions I took, the league would have what they wanted. I was willing to accept the harshest penalty in the history of the NFL for an alleged ball violation because I believed it would help exonerate Tom.
“I have often said, ‘If you want to get a deal done, sometimes you have to get the lawyers out of the room.’ I had hopes that Tom Brady’s appeal to the league would provide Roger Goodell the necessary explanation to overturn his suspension. Now, the league has taken the matter to court, which is a tactic that only a lawyer would recommend.”
Goodell, as is his wont, was never interested in fairness. He was interested in admittance and capitulation. The NFL would only settle with Brady if Brady admitted guilt in a case that did not compel him to do so. Basically, Goodell took the NFL's interior standard of discipline to an actual court of law, and he rightly got slammed as a result. Sadly, he probably doesn't understand why.
There are those who will say that Goodell is safe in his position, no matter how many legal embarrassments the league suffers under his tenure. There are those who will insist that Goodell is simply a public punching bag who acts at the owners' behest, and as long as he plays the fall guy, the losses don't matter. Both arguments seem especially short-sighted to me. It's clear that Goodell acts at his own behest, and that his priorities are centered more on flexing authority than adhering to a CBA that is already highly favorable to his side. It's also clear that when he became commissioner in 2006, he had inherited a license to print money that had been built by men far more brilliant and far-sighted than he has ever been.
What we have now is the end of a useless exercise which cost millions of dollars, and man-hours, for no good result except that once again, the NFL has proven that under Goodell, it's in completely over its own organizational head. Very quickly, the guilt or innocence of the defendant became a moot point, as it has been throughout Goodell's tenure.
It's time to stop these irrelevant exercises.
What the NFL needs now is not what Roger Goodell provides. The NFL does not need a reactionary leader with very little in the way of original vision. The NFL needs a leader who will not punish in ways that leave doors open for legal blasts from all sides. The NFL needs a leader who will take more serious matters into consideration. The NFL needs a leader who is more concerned about the good of the league and its players than his own sense of power and discipline. The NFL needs a leader who will take an aggressive and global look at things like field conditions, officiating and replay problems, injury issues, the continuing specter of head trauma and its ramifications, and the ongoing blight of domestic violence. The NFL needs a leader who will address the legitimate issue of concussion fear at the youth sports level with more than a cosmetic “Heads Up” program. The NFL needs a leader who understands that the league is a self-perpetuating money machine, that this fact is not about him but about the game, and will thusly work even harder to take the game into the 21st century and beyond.
The NFL needs a leader more concerned with results than appearances.
The NFL needs a commissioner who understands that his tenure is about the good of the league, and not a justice system set up in back rooms and board rooms with arbitrary and indefensible punishments as the norm. Put simply, the NFL needs a commissioner whose name is not Roger Goodell.
It's time for Roger Goodell to go.