The NFL on Monday filed a 59-page brief with the U.S. Court of Appeals for the Second Circuit in which the league argues that U.S. District Judge Richard Berman wrongly ruled in Tom Brady’s favor on Sept. 3. The NFL asks the Second Circuit to reverse Judge Berman and order that Brady’s four-game suspension be reinstated.
The NFL’s brief is the first of three major filings in the appeal. The NFLPA now faces a Dec. 7 deadline to file a reply brief and the NFL will then face a Dec. 21 deadline to file a response to the NFLPA’s reply. It is expected that oral arguments for the appeal will be heard next February, although the date of the oral arguments will depend on the schedules of the three judges ultimately selected to hear the appeal. A ruling on the appeal will likely be made in the spring or possibly early summer. Regardless of whether the NFLPA or NFL wins the appeal, Brady will remain eligible to play for the Patriots throughout the 2015 regular season and post season. If the Second Circuit reinstates Brady’s suspension, the suspension would take effect no earlier than the start of the 2016 regular season.
The NFL’s core goal in the appeal
To win the appeal, the NFL must convince the Second Circuit not that Brady partook in a ball deflation scheme but that Judge Berman misapplied federal law in ruling against the NFL. These are two very different objectives. One is a factual question about Brady and the other is a legal one about Judge Berman. An appeal is all about the law. This means that a legal dispute that began with a focus on one of the NFL’s best players is now focused on the legal reasoning of a federal judge. As a consequence, there will be no witnesses and no evidence in the NFL’s appeal—only dueling arguments articulated by sophisticated attorneys about Judge Berman’s application of federal law.
To advance the NFL’s argument that Judge Berman wrongly applied the law, attorneys for the league use Monday’s brief to portray Judge Berman as having “vastly exceeded the narrow bounds of judicial review” he was accorded by federal law and U.S. Supreme Court precedent. They also chastise Judge Berman by insisting that he “made no effort” to ground his decision in “long-settled legal framework.” The attorneys further remind the Second Circuit that they should review the legal questions in the appeal “de novo,” meaning starting from new and without deference to Judge Berman’s reasoning and conclusions. The NFL details these core contentions in the brief filed on Monday.
The NFL’s key legal arguments
In the brief, attorneys for the NFL charge that Judge Berman ignored the deference he was obligated by the Labor Management Relations Act (LMRA) to show Goodell while Goodell acted in the capacity of an arbitrator of a management-labor dispute. Along those lines, the brief highlights case precedent indicating that so long as the arbitrator (Goodell) “plausibly interpreted and applied” Article 46 of the collective bargaining agreement, Judge Berman had no right to vacate Goodell’s award.
Keep in mind, a legal standard that only requires Goodell to have rendered a “plausible interpretation” means that so long as Goodell’s decision to uphold Brady’s four-game suspension could be considered a “plausible” application of Article 46—not necessarily the “correct” application or even a “sensible” application, but merely a “plausible” one—then Goodell lawfully acted within the scope of his authority. According to the NFL, had Judge Berman adhered to this deferential standard, it would have been an “easy case” for the judge—and, by “easy,” the NFL means it should have been obvious for Judge Berman to rule for the league.
To further this point, the NFL highlights Goodell’s conclusion that there was “significant evidence” of Brady having “awareness and consent” of “a scheme to deflate game balls to be used in a conference championship game” and that such a scheme “was [both] aimed at gaining an unfair competitive advantage on the field . . . [and] struck at the heart of the game’s integrity.” While there are many reasons to question the quality and scope of evidence linking Brady to a ball deflation scheme that might have occurred due to atmospheric conditions rather than nefarious conduct, the NFL’s brief essentially argues that those concerns don’t matter under the law. What matters, according to the NFL’s interpretation of law, is that Goodell enjoys the collectively bargained authority to render applications of collectively bargained policies as he sees fit so long as those applications can be considered “plausible.”
The NFL also contends that both the NFLPA and Judge Berman wrongly took issue with Goodell attempting to justify Brady’s four-game suspension on grounds that it matched the collectively bargained four-game suspension for testing positive for steroids. Recall that Judge Berman had reasoned that “none” of the collectively bargained steroid policy procedures “has anything to do with Brady’s conduct and/or his discipline.” In striking contrast, the NFL’s brief on Monday asserts that Brady should have received a six-game suspension because a six-game suspension is assigned to a player who uses masking agents—a deceptive act which the NFL claims is akin to Brady trying to “cover up the underlying violation” through “destruction” of his cell phone.
Additionally, the NFL’s brief attempts to distinguish modest penalties for other equipment violations (for example, use of Stickum) and lack of cooperation (Brett Favre’s $50K fine while playing for the Jets) as not nearly as worrisome as Brady’s alleged “scheme” to gain an unfair competitive advantage. In fact, the league’s brief maintains that past punishments for equipment violations are irrelevant when Goodell has punished Brady not for an equipment violation but for conduct detrimental to the league.
Further, the NFL charges that Judge Berman misunderstood the issue of “notice,” which Judge Berman used to harshly criticize the NFL. The NFL insists that Brady, as a member of the NFLPA, had clear notice that he could face a discipline as plausibly determined by Goodell if Brady “secured a competitive advantage in, and threatened the integrity of, the game.” To advance this point, the NFL highlights that “every player signs a contract” that expresses the “Commissioner has substantial discretion to discipline conduct detrimental with a suspension up to and including indefinite suspension.” This is a key argument for the NFL, because the league knows that Brady would have lacked notice for the “general awareness” and “more probable than not” standards enunciated in the Wells Report. If the NFL can prove that Brady’s awareness of Goodell’s power under Article 46 was undisturbed by the Wells Report then the Wells Report becomes a less significant weakness for the NFL.
Lastly, the NFL contends that Judge Berman wrongly attributed meaningfulness to the inability of Brady’s legal team, led by Jeffrey Kessler and David Greenspan, to cross examine NFL general counsel Jeffrey Pash and to examine notes compiled by Ted Wells’s law firm Paul, Weiss Rifkind, Wharton & Garrison in the firm’s so-called “independent” investigation. The NFL charges that because Pash’s role was limited to essentially acting as a facilitator for Wells to meet with Patriots employees and others connected to Deflategate, Goodell was within his authority as the arbitrator to deny Kessler and Greenspan an opportunity to question Pash. Goodell evidently reasoned that Kessler and Greenspan’s ability to question Wells included the ability to ask about Pash, which Goodell deemed to be a sufficient opportunity to ask about Pash. The NFL also insists that Goodell was not obligated under Article 46 to allow Kessler and Greenspan an opportunity to inspect the notes and therefore Goodell denying them such an opportunity did not constitute valid grounds to vacate Goodell’s arbitration award.
The NFLPA will respond by Dec. 7
In its own upcoming brief to be filed by Dec. 7, the NFLPA will aggressively disagree with the points raised by the NFL’s appeal. In that same vein, the NFLPA will portray Judge Berman as having correctly applied the law. To accomplish that goal, the NFLPA will raise a series of key arguments, most of which are captured in detail in an SI.com analysis of Judge Berman’s decision.
For instance, the NFLPA will highlight the confusing process applied by the NFL in disciplining Brady. Similarly, it will frame the seemingly “changing goalposts” for why Brady was being punished as valid grounds for Judge Berman to vacate Goodell’s award.
The NFLPA will also maintain that while federal judges are obligated to accord substantial deference to arbitrators, such deference is not absolute—a point which the NFL seemed to accept given that the league, by filing a lawsuit against Brady in New York, sought the approval of a federal judge to uphold Goodell’s award. Moreover, cases cited by the NFL involve neutral arbitrators rather than an arbitrator like Goodell, who was anything but neutral. The NFLPA will also maintain that the league previously provided investigative notes in the Bounty and Ray Rice disputes and thus should have done the same with Brady.
Also, although factual issues are not at stake in the appeal, you can be sure NFLPA attorneys will mention the various reasons to doubt the NFL’s underlying theory of Brady partaking in a ball deflation scheme. This is important because the NFL’s brief on Monday assures the Second Circuit that there is “significant evidence” of Brady’s wrongdoing. In response, expect NFLPA attorneys to highlight, among other things, NFL attorney Daniel Nash’s admission to Judge Berman that no direct evidence linked Brady to a ball deflation scheme in the 2015 AFC Championship Game.
Expect the NFLPA to also dismiss some of the NFL’s reasoning in Monday’s brief as irrelevant. For instance, the NFL cites the 1919 “Black Sox” Scandal—where gamblers paid off members of the Chicago White Sox to lose against the Cincinnati Reds in the World Series—as illustrative of the need for commissioners to have sweeping authority to discipline players who attempt to undermine the public’s faith in the league. For multiple reasons, the NFLPA is poised to argue that the Black Sox scandal is a poor example to justify Goodell’s punishment of Brady. First, the Black Sox scandal involved direct proof of wrongdoing, unlike Deflategate where no direct evidence links Brady and where the Ideal Gas Law and confusion about how the referees tested the footballs cloud the indirect evidence. Second, the Black Sox scandal involved a conspiracy to throw games, not gain what would have been a modest and likely inconsequential advantage with slightly under-inflated footballs. Third, the Black Sox scandal occurred in an era before there was collective bargaining between owners and players. This was a time when owners unilaterally imposed employment rules on the players. Those days and their associated legal regimes are long since over. Indeed, when judged by the NFL, Brady was protected by a collectively bargained set of rules that are subject to federal labor law.
Other key legal factors going forward
The NFLPA is likely confident it will win the appeal. It knows that Judge Berman is rarely reversed. As shown in a previous SI.com article, of the 204 decisions by Judge Berman that were appealed over the last 15 years, 159 (78%) were affirmed and only 17 (8%) were reversed or vacated. This data, it should be noted, is about “average” for judges who sit alongside Judge Berman on the U.S. District Court for the Southern District of New York: the average reversal rate in this court is only about 8%. Still, it is a favorable piece of data for the NFLPA.
While Judge Berman’s decisions usually withstand appeal, his decisions usually aren’t challenged by some of the best appellate litigators in the U.S. On Monday it was revealed that the NFL has assembled something of a “dream” legal team for the appeal. Former U.S. Solicitor General Paul Clement—who successfully argued on the NFL’s behalf before the U.S. Court of Appeals for the Eighth Circuit in the 2011 lockout litigation—and star attorney Erin Murphy—who has successfully argued cases before the U.S. Supreme Court—have been retained by the NFL to help beat Brady on appeal.
Clement, Murphy and other NFL attorneys will surely be following whether the NFL wins its appeal in the Adrian Peterson case, oral arguments for which were held last week before a three-judge panel on the U.S. Court of Appeals for the Eighth Circuit. To be clear, the NFL defeating the NFLPA in Peterson’s appeal would not obligate the Second Circuit to rule for the NFL in Brady’s appeal. These are two different federal appeals circuit courts and Peterson and Brady’s legal disputes involve different applications of Article 46. Still, the league winning the Peterson appeal would be favorable precedent for the NFL in Brady’s appeal. The converse is also true: if the NFLPA wins Peterson’s appeal, the win would be favorable precedent for it in Brady's appeal.
Lastly, there remains a crucial unknown factor: the identities of the three judges who will hear the appeal in Brady v. NFL. As explained in another SI.com article on this case, the Second Circuit has a wide-range of conservative, liberal and “other” judges. It will be the luck of the draw as to which ones are slotted to hear the appeal. If two of the three judges selected are relatively “pro-management,” Brady would be more likely to lose; if two of the three judges selected are relatively “pro-labor,” Brady would be more likely to win. Just like in a football game, sometimes outcomes in cases can be greatly influenced by sheer luck.
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.