Deflategate judge will put NFL's arbitration process into focus

Rachel Axon | USA TODAY

Forget psi and the Ideal Gas Law. Text messages referencing “the deflator” won’t be considered either.

As U.S. District Court Judge Richard M. Berman weighs the case between the NFL and the Players Association and Tom Brady, the question of whether Brady was complicit in the deflation of footballs isn’t on the table.

Rather Berman must decide whether the arbitration process that ended with Commissioner Roger Goodell upholding a four-game suspension for the New England Patriots quarterback was fair and in compliance with the collective bargaining agreement between the league and the union.

“If it’s outside the collective bargaining agreement and doesn’t go to the very essence of that agreement, he will overturn the discipline,” says Daniel Wallach, a sports litigator with Becker & Poliakoff in Fort Lauderdale.

“This is no longer about deflated footballs,” says Wallach. “It’s about the way the NFL administers justice and it’s about the absence of fair procedures and even handedness.”

In the nearly seven months since the Patriots’ 45-7 win over Indianapolis in the AFC Championship game, the fight turned to a question of how players are disciplined.

In July, Goodell upheld Brady’s suspension in an arbitration decision now before the U.S. District Court for the Southern District of New York.

The NFLPA and Brady have put forth several arguments, but attorneys say a lack of notice is likely his strongest.

The union contends: Brady was not told he would be subject to the competitive integrity policy used to fine the Patriots and revoke draft picks, which applies to clubs and not players; applicable player policies regarding tampering with equipment call for fines and not suspensions; he could not be suspended for “general awareness” of misconduct by others; and he could not be suspended for non-cooperation when only a fine has been levied previously.

Their cases relies on the law of the shop, which represents the past practices and precedents between the parties. That includes discipline for former Baltimore Ravens running back Ray Rice, whose suspension for domestic violence was overturned in arbitration by retired Southern District Judge Barbara S. Jones, and Minnesota running back Adrian Peterson, who saw U.S. District Court Judge David S. Doty vacate an arbitration decision that upheld suspension for corporal punishment of his son.

In both cases, the union argued that the players did not have notice they were subject to the policies the NFL sought to use to suspend them.

“If the judge decides those decisions for notice do apply here, then Brady has a strong position because that sort of ‘detrimental to the league’ language didn’t work in those other cases,” says Daniel Werly, a sports litigator at Foley & Lardner LLP. “I think that’s where the decision is going to have to be made.”

The NFL has argued those precedents and lack of notice do not apply in Brady’s case and that Goodell reached his decision under Article 46 of the CBA, which gives him latitude to discipline players for “conduct detrimental to the integrity of, or public confidence in, the game.”

“It’s a very broad sweep,” says Wallach. “The league is equating that to almost like a best-interest-of-baseball clause, and if that were the case, no discipline would ever be overturned. The integrity of the game is such a broad, amorphous concept that it would conceivably encompass everything under the sun.”

The NFLPA isn’t arguing that the process agreed to in the CBA is unfair, says Stephanie Stradley, a Houston attorney who has written about league discipline issues since 2006, but that the NFL did not follow the process outlined there.

“There is a laundry list of things within the process that the NFLPA points out that are not fair at all and you would not see in any context,” says Stradley.

In his 20-page arbitration decision, Goodell asserts that he was “directly involved” in the suspension of Brady and did not delegate that authority to NFL executive vice president of football operations Troy Vincent, who communicated the suspension to Brady. While that stems from an argument about delegating authority, which the Players Association contends is not permissible under the CBA, it has allowed the union to question Goodell’s bias.

“I think the question (before Judge Berman) is was Goodell objectively an impartial arbitrator, considering that he was essentially arbitrating over a decision that he made,” says Alan Milstein, a litigator at Sherman Silverstein outside of Philadelphia. “I think the answer to that is fairly obvious. He wasn’t impartial. There’s no way he could remove his partiality and his bias from the arbitration.”

The NFLPA filed an expanded answer and counterclaim this week, and the court is awaiting the league’s response to the complaint. Each side is due to submit a 15-page brief on Friday summarizing their positions, and both parties — including Brady and Goodell — are expected to appear before a Berman in a settlement conference on Wednesday.

An order from Berman last week strongly signaled that they should be working toward a settlement and included guidance for both sides to tone down their rhetoric.

Following Brady’s June 23 appeal hearing, the players association offered to accept a fine for non-cooperation but no suspension. The NFL did not respond.

Should the decision be left to Berman — who has committed to ruling by Sept. 4 — the NFL has on its side an overwhelming history of courts upholding arbitration decisions.

In a 2013 article in New York Dispute Resolution Lawyer, three attorneys reviewed arbitration cases in the Southern District from 2005-11. In the 68 labor and employment awards they studied, only two were denied confirmation.

Milstein points out that while it is difficult to get a court to vacate an arbitration award, it has happened to the NFL under Goodell in the Peterson case. In addition to Rice’s case, NFL arbitrators have overturned or reduced suspensions in Bountygate and the domestic violence case against Cowboys defensive end Greg Hardy.

At the crux of these repeated disputes between the league and players union is the commissioner’s role in disciplinary cases. The NFLPA would like a neutral third party, while Goodell believes he has a collectively bargained right and it’s in the best interest of the league for him to retain that power.

Ultimately, that disagreement could affect whether the two sides can reach an agreement before Berman is left to decide the case.

“That conflict underlies many of the disputes between the league and the players association,” says Gabe Feldman, director of the sports law program at Tulane and legal analyst for the NFL Network. “It’s yet another obstacle to settlement.”

Follow Rachel Axon on Twitter @RachelAxon.