On March 3, 2016, Judge Denny Chin of the U.S. Court of Appeals for the Second Circuit was serving on a panel reviewing NFL Management Council et al. v. NFL Players Association et al. I was sitting in the courtroom that day, and I was stunned when I heard Judge Chin’s characterization of the alleged “evidence” connecting Tom Brady to the bizarre equipment controversy known as Deflategate.
“When you read all the evidence, the text messages ... the evidence of ball tampering is compelling, if not overwhelming.”
I felt that way for two different but related reasons, and those reasons connect to remarks made by NFL commissioner Roger Goodell during Wednesday’s Super Bowl press conference.
First, the appeal was not about whether Brady partook in the kind of misbehavior theorized the NFL. The appeal, filed by the NFL, was instead about whether U.S. District Judge Richard Berman lawfully vacated an arbitration award that had been issued by Goodell while Goodell was acting as a hearing officer (arbitrator) in Brady’s appeal of Goodell’s four-game suspension of him.
As discussed throughout Deflategate, federal judges rarely vacate arbitration awards, a point that made Judge Berman’s decision in favor of Brady unconventional. Indeed, federal law requires judges to accord very high deference to arbitrators’ determinations of fact and applications of law. Goodell, in fact, could have been factually wrong about Deflategate and yet still have both lawfully suspended Brady and lawfully upheld Brady’s suspension. Making matters more legally difficult for Brady, Article 46 of the collective bargaining agreement between the NFL and NFLPA—a provision that enables Goodell to serve as fact-finder, punisher and arbitrator—provided Brady with no additional process rights.
In order to determine if Judge Berman correctly vacated Goodell’s award, Judge Chin, along with Chief Judge Ronald Katzmann and Judge Barrington Parker, Jr., were expected to focus on the reasons Judge Berman offered for vacating the award. As you may recall, Judge Berman vacated the award for three basic reasons: 1. Brady failed to receive adequate notice; 2. Brady was denied the NFL’s investigative notes; and 3. Brady was denied a chance to cross-examine NFL executive vice president (and, along with Ted Wells, co-lead investigator of the “independent” investigation) Jeffrey Pash.
Yet at one point during the oral argument on March 3 of last year, Judge Chin took issue with remarks made by attorney Jeffrey Kessler on behalf of Brady and the NFLPA. In that sequence, Judge Chin focused on whether Brady was guilty or innocent—an interesting question, to be sure, but a difficult, if not impossible, one to reliably evaluate in an appellate oral argument. Keep in mind, neither Judge Berman nor any court had evaluated the so-called evidence prior to ruling for Brady. Also, neither evidence nor witnesses play any role in an appellate oral argument, meaning the discussion about evidence was based on unevaluated conclusions drawn by Goodell. The exchange seemed to surprise Kessler as much, if not more, than anyone else in the courtroom:
JUDGE CHIN: When you read all the evidence, the text messages...
MR. KESSLER: Yes.
JUDGE CHIN: ... the evidence of the ball tampering here is compelling, if not overwhelming. And I think the finding, also, that Mr. Brady knew about it, consented to it, encouraged it, is also supported by the evidence. So, how do we as appellate judges reviewing an arbitrator's decision second-guess the four-game suspension?
MR. KESSLER: Your Honor, I would not ask you to second-guess the facts. There's a lot of discussion in the facts. We think we win because of ...
JUDGE CHIN: Do you accept the facts?
MR. KESSLER: Do we accept the facts? I have to accept the facts for the purposes of this proceeding. We are not asking you to review the facts. What we have argued is that there are—I don't, by the way, agree with the facts, but that's different than accepting it for purposes of this appeal. For purposes of this appeal, the notice provisions, the bargained-for, collectively bargained penalties were ignored, or there was no notice at all, if you say.
The second reason Judge Chin’s remarks surprised me: Judge Chin’s characterization of the evidence defied the views of distinguished scientists. Most notably, MIT Professor John Leonard (a self-described diehard Philadelphia Eagles Fan) showed that the NFL’s conclusions about air pressure were incompatible with Ideal Gas Law. This is an important point, since if the footballs measured as science predicted they would, then ambiguous texts, an impromptu bathroom visit prior to the 2015 AFC Championship Game and other circumstantial points were seemingly inconsequential: science showed that the footballs were not intentionally deflated and thus science appeared to disprove Deflategate.
While Judge Chin may not have been aware of these scientific views and while he was by no means obligated to know of them or accept them—after all, science and facts were outside the scope of the litigation—the certainty expressed by Judge Chin in Brady’s guilt was unexpected.
Judge Chin’s views about the evidence were, of course, not the reasons he and Judge Parker ruled for the NFL. Their opinion, from which Chief Judge Katzmann dissented, rejected Judge Berman’s three rationales for vacating the arbitration award. Judge Chin and Judge Parker also stressed that alleged facts and evidence were not at issue in their decision. On behalf of Judge Chin, Judge Parker wrote:
Because it is the arbitrator’s view of the facts and the meaning of the contract for which the parties bargained, courts are not permitted to substitute their own. It is the arbitrator’s construction of the contract and assessment of the facts that are dispositive, “however good, bad, or ugly.” . . . [O]ur task is simply to ensure that the arbitrator was “even arguably construing or applying the contract and acting within the scope of his authority” and did not “ignore the plain language of the contract.”
Back to Goodell... In Wednesday’s press conference, Goodell and Comcast SportsNet New England anchor Tom Curran had the following contentious exchange:
Curran: The court didn’t uphold the investigation, it upheld your right to go ahead and do what you did—
Goodell: Tom, if you look at the Second Circuit court, the decision they set is that there were compelling, if not overwhelming, facts here.
Goodell’s depiction mischaracterizes the decision for at least two reasons. First, Goodell quoted one of the three judges (Judge Chin), and not the court. This is an important point since saying “the court” suggests it was a decision of the court, when in fact it was not. Second, as explained above, Judge Chin and Judge Parker carefully explained their 2–1 decision to vacate Judge Berman on procedural grounds, not on supposed and unevaluated evidence. For Goodell to now say the “decision” of the court established conclusions of evidence twists the decision to say something it did not.
You might say that none of this matters and that Deflategate is yesterday’s news. You might be right. But given that the NFL spent millions of dollars litigating against Brady over a seemingly trivial equipment infraction and given that Deflategate—and a desire for vengeance—is a motivating force for the Patriots this season, you might say that every word about Deflategate matters to the NFL. Perhaps we’ll find out on Sunday.
Michael McCann is SI’s legal analyst. He is also an attorney and a tenured law professor at the University of New Hampshire School of Law.