The NFL on Thursday moved one step closer in its appeal of U.S. District Judge Richard Berman’s decision on Sept. 3 to vacate Tom Brady’s suspension. In court papers filed with the U.S. Court of Appeals for the Second Circuit, attorneys for the NFL outlined the league’s anticipated legal arguments for the appeal. Unlike the one-month hearing before Judge Berman, the appellate process in Brady v. NFL will take months, if not years, to play out and an ultimate decision is likely a long way off. Assuming the NFL and NFLPA continue the appellate process to its logical conclusion, the Second Circuit will probably not rule until next summer or fall and its ruling would be followed by another appellate stage. To be sure, the league appealing Brady v. NFL is the expected move and is consistent with statements made by NFL commissioner Roger Goodell. As explained below, however, the appeal imposes risk on the NFL and possibly other professional sports leagues.
Understanding the NFL’s filing on Thursday and its significance in the case
Thursday’s filing by the NFL does not explain the NFL’s appellate arguments. The explanation will be contained in a forthcoming memorandum that carefully describes the league’s legal theories and cites favorable case precedent. Also, for its part, the NFLPA will explain its counter-arguments in its own memorandum. These documents have not yet been filed.
Thursday’s filing only serves as the NFL’s “pre-argument statement.” The pre-argument statement merely informs the Second Circuit of the types of arguments the league plans to raise on appeal. The NFL’s statement uses just 165-words to outline three anticipated arguments and to assert the appropriate standard of appellate review.
According to the pre-argument statement, the NFL first intends to argue that Judge Berman relied on the wrong federal law in determining the relevant legal standards. The league insists that Judge Berman should have relied on a federal labor law — the Labor Management Relations Act — rather than the Federal Arbitration Act. In his opinion, recall how Judge Berman highlighted that an arbitration award (which in this case was Goodell upholding Brady’s suspension) must exhibit fairness and due process. Judge Berman also placed significance on the law of the shop, which required the NFL to provide advance notice of prohibited conduct and potential discipline. In an appeal, the NFL will insist that the Second Circuit should place far greater significance on federal court deference to arbitration awards as dictated by the Labor Management Relations Act.
Second, the NFL intends to argue that Judge Berman mistakenly disagreed with Goodell's interpretation of the CBA, Goodell’s findings of fact and Goodell’s utilization of past NFL arbitration awards. Judge Berman contended that Goodell, as the arbitrator, was “not free to merely dispense his own brand of industrial justice." Judge Berman’s message indicated that he regarded Goodell as acting well beyond the permissible scope of his powers. Recall how during the hearings, Judge Berman seemed particularly interested in the NFL’s findings of fact — especially as that fact-finding related to NFL allegations of a football deflation conspiracy and to whether the league sufficiently explained under which policy Brady had been punished.
On appeal, the NFL will be poised to argue that it was Judge Berman, not Goodell, who went beyond the scope of his permissible powers. The NFL will likely contend that federal judges are obligated to provide high deference to arbitrators in their interpretation of facts and collectively bargained terms, and that Judge Berman failed to satisfy that responsibility by conducting what arguably seemed like a mini-trial.
Third, the NFL plans to assert that Judge Berman wrongly relied on his disagreement with Goodell’s rulings on two issues pertaining to evidence. In his opinion, Judge Berman chastised Goodell for several topics related to evidence, including Goodell denying Brady an opportunity to review notes of witness interviews conducted by Ted Wells. In an appeal, the NFL will maintain that Goodell had the discretionary authority under Article 46 of the collective bargaining agreement to make decisions about evidence and that Judge Berman mistakenly ruled otherwise.
Lastly, the league argues that in reviewing Judge Berman’s order, the Second Circuit should do “de novo.” If adopted by the Second Circuit, the de novo standard would require the appellate court to review Judge Berman’s decision without deference to Judge Berman. The Second Circuit would thus consider the issues raised by Goodell in upholding Brady’s appeal with a fresh set of eyes and wouldn’t rubberstamp Judge Berman’s conclusions. The de novo standard is generally considered the appropriate standard for questions of law, but as the NFLPA will insist, it is not appropriate for questions of fact and arguably some aspects of Judge Berman’s decision go to factual matters.
Brady will likely win the appeal
To win the appeal, the NFL must convince at least two judges on a three-judge Second Circuit panel (the panel has not yet been named) that Judge Berman misapplied or misinterpreted the law. As explained above, the NFL will argue that, contrary to Judge Berman’s conclusion, Goodell lawfully upheld Brady’s four-game suspension while Goodell acted as an arbitrator. For several reasons, this is a tall order.
First, appeals usually fail. While use of general data on appeals to predict the success of an individual appeal should be taken with a rock-sized grain of salt - every appeal is unique - the vast majority of appeals do not lead to reversals. In some ways this is the opposite legal landscape the NFL faced when it argued before Judge Berman. Federal district court judges rarely vacate arbitration awards, a fact that led many legal observers to predict that Judge Berman would rule for the NFL. Judge Berman, of course, ruled for the NFLPA and Brady. This time the odds will be against the NFL.
Second, the Second Circuit has affirmed Judge Berman’s decisions at a high rate. According to data I found through Westlaw’s excellent judicial reversal report service, 204 of Judge Berman’s decisions were appealed between 2000–15 and 159 of them (78%) were affirmed. Only 17 of those appeals (8%) led to the Second Circuit reversing or vacating Judge Berman’s decisions, with even fewer appeals leading to remand (which means a new hearing) or partial affirmation. These numbers closely track the average percentage (8%) of reversals of private civil cases by the Second Circuit between 2013–14. Bottom line: Second Circuit judges seem to favorably view Judge Berman, who has been a federal judge for 17 years, since they very often agree with him. While we do not yet know which three judges will hear the NFL’s appeal and thus we do not know whether those judges may be more pro-management than pro-labor, Judge Berman’s favorable track record before the Second Circuit works against the NFL.
Third, Judge Berman’s decision in Brady v. NFL lacked obvious gaps in reasoning that can be exploited in an appeal. This was not a head-scratching opinion that seems ripe for appellate reversal. The decision was instead straightforward and, to many, logical. Although the NFL might be able to raise convincing arguments that undermine Judge Berman’s analysis, the league has its work cut out.
The NFL losing the appeal could carry serious consequences for the league and possibly also the NBA, MLB and NHL
The NFL’s loss in Brady v. NFL at the U.S. District Court in the Southern District of New York creates precedent that can be used against the NFL in future cases. Judge Berman’s opinion indicates that the law of the shop imposes decision-making constraints on Goodell that go beyond those collectively bargained in Article 46. This ruling is now binding precedent in this particular federal court and is influential in other courts. As a result, should other NFL players go to federal court to challenge the NFL’s disciplinary rulings, they would cite Brady v. NFL as favorable precedent. Obviously, the legal issues raised in Brady are unique — they emanate from a bizarre and unproven scheme that concerned slightly underinflated footballs — and thus may not be determinative in a different player’s legal challenge. Still, a loss to Brady was harmful to the NFL’s ability to apply Article 46 as it is worded and it encourages the NFLPA to litigate player disciplinary matters in New York.
It can get worse for the NFL. If the NFL loses Brady v. NFL at the U.S. Court of Appeals for the Second Circuit, a more consequential court precedent would be set and it would be binding on other federal district courts in New York, as well as those in Connecticut and Vermont. The precedent would also carry more significant persuasion in other federal district courts than the lower court decision of Judge Berman. The league, in other words, is rolling the dice by pursuing an appeal.
Other leagues have also been impacted by the NFL losing and would be affected even more if the NFL loses the appeal. While the NBA, MLB and NHL have collectively bargained their own player conduct policies with their respective players’ associations, it is possible that players in those leagues will cite Brady v. NFL should they go to court against those leagues. This is particularly true since those leagues, like the NFL, are headquartered in New York City and thus are vulnerable to litigation in the U.S. District Court for the Southern District of New York and in the U.S. Court of Appeals for the Second Circuit.
The appeals process could go into 2017 or beyond
In an attempt to encourage a settlement, Judge Berman warned the NFL and NFLPA that Brady v. NFL could last years. He was right. If sometime next year the Second Circuit remands the case back to Judge Berman, he would then conduct a new hearing. Judge Berman would reserve the right to rule on issues that he previously declined to adjudicate, such as whether Goodell was unlawfully partial as the arbitrator. A second decision by Judge Berman could be met with a second appeal to the Second Circuit, with the second appeal not decided until sometime in 2017 or even 2018.
Alternatively, the Second Circuit could affirm or reverse Judge Berman’s first ruling, which would then allow the loser to petition for an “en banc” hearing before the entire Second Circuit. While en banc hearings are rarely granted, petitioning for one would take months to play out. Afterward, there would be an opportunity for the losing side to seek review by the U.S. Supreme Court. This entire appellate process could take several years. While the 38-year-old Brady is expected to play for several more seasons, it’s conceivable that he could retire before the litigation ends. A court would likely render the litigation “moot” at that point and end it.
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.