The NFL won their appeal to have Tom Brady’s four-game suspension reinstated, but there was a dissenting view from U.S. Appeals Court Judge Robert Katzmann.

Katzmann agreed with U.S. District Court Judge Richard Berman’s decision to vacate Brady’s four game suspension over Deflategate, while U.S. Appeals Court Judges Barrington Parker and Denny Chin ruled to reinstate the ban.

Here is Katzmann’s opening statement on his dissenting opinion:

“Article 46 of the Collective Bargaining Agreement between the NFL Players Association (the ‘Association’) and the NFL Management Council requires the Commissioner to provide a player with notice of the basis for any disciplinary action and an opportunity to challenge the discipline in an appeal hearing. When the Commissioner, acting in his capacity as an arbitrator, changes the factual basis for the disciplinary action after the appeal hearing concludes, he undermines the fair notice for which the Association bargained, deprives the player of an opportunity to confront the case against him, and, it follows, exceeds his limited authority under the CBA to decide ‘appeals’ of disciplinary decisions.

“In its thorough and thoughtful opinion, the majority does not contest this understanding of the CBA. Instead, it asserts that the Commissioner did not change the factual basis for the discipline and, in effect, that any change was harmless. I cannot agree.

“Additionally, on a more fundamental level, I am troubled by the Commissioner’s decision to uphold the unprecedented four‐game suspension. The Commissioner failed to even consider a highly relevant alternative penalty and relied, instead, on an inapt analogy to the League’s steroid policy. This deficiency, especially when viewed in combination with the shifting rationale for Brady’s discipline, leaves me to conclude that the Commissioner’s decision reflected ‘his own brand of industrial justice.’ United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960).

“For these reasons, I respectfully dissent.”

Here is how Katzmann concluded his dissent:

“I end where I began. The Article 46 appeals process is designed to provide a check against the Commissioner’s otherwise unfettered authority to impose discipline for ‘conduct detrimental.’ But the Commissioner’s murky explanation of Brady’s discipline undercuts the protections for which the NFLPA bargained on Brady’s, and others’, behalf. It is ironic that a process designed to ensure fairness to all players has been used unfairly against one player.

“I respectfully dissent.”

You can read Katzmann’s full dissent, which begins on Page 34, here.

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