Brady Sacked in the Second Circuit

The United States Court of Appeals for the Second Circuit ruled 2-1 that Commissioner Roger Goodell's four-day disciplinary suspension of Patriots quarterback Tom Brady should be affirmed. In a carefully researched opinion, Judge Barrington D. Parker explained that, as an arbitrator, Goodell's decision was worthy of utmost deference. Under prevailing precedent, a court was not to review the commissioner's judgment either on the merits of his ruling or, for the most part, on the process he followed in reaching his conclusions regarding the NFL's leading quarterback. Were Commissioner Goodell actually sitting as an arbitrator in this case, the majority's approach and analysis would be impeccably correct. In fact, Goodell was not sitting as an arbitrator, and thus his entire process was mischaracterized by the Second Circuit panel.

It is impossible to criticize the majority for the fundamental error set forth in the first line of the opinion: "This case involves an arbitration . . ." Both parties before the Court and District Judge Berman, whose decision was reversed by the Circuit panel, described the case as an arbitration. It is easy to understand why the National Football League would do so. Its commissioner was the decision maker, and therefore extreme deference to his judgment would clearly benefit the league. It is more difficult to explain why the Players Association would label the proceeding before Goodell an arbitration, but that was how they argued the case. By doing so, the union gave the league and the majority of the Second Circuit panel an opening for deferring to Mr. Goodell.

Why does it matter what you call the proceeding before the commissioner? Wouldn't the case come out the same way if Roger Goodell was wearing his hat as "Commissioner" or CEO of the league? It is hard to say, but a court reviewing a purely managerial decision would not be handcuffed by the abundant precedent involving the limited review of arbitration awards. Instead, a court would determine whether the commissioner's conclusion was "reasonable" as opposed to "arbitrary and capricious."

Were it not considered to have been an arbitration process, the court would have had ample reasons for setting aside the commissioner's decision, focusing both on the process he employed and the conclusions he reached. National labor policy has elevated arbitration to a unique status for very good reasons. Arbitrators are neutrals, not partisans. They are selected by labor and management to administrator a process with some well-understood elements to it that insure fairness to all concerned.

When the NFL and the NFLPA negotiated their Collective Bargaining Agreement, they reserved to the commissioner in Article 46 the right to impose discipline on players "for conduct detrimental to the integrity of, or public confidence in, the game of professional football . . . " The commissioner reserved the right to appoint another person as the "hearing officer." Unlike other provisions in the Agreement, Article 46 does not refer to the decision maker as an "arbitrator." That omission is quite significant, because the parties to the negotiations certainly understood what it meant to denominate someone as an arbitrator. Instead, the commissioner acts as the commissioner with no pretense that the norms of labor arbitration would be followed. That was how Commissioner Goodell conducted the proceeding, barring the Players Association from examining Jeff Pash, a key player in the investigation of Brady, and refusing the union access to supportive documents in the investigation. There was nothing wrong with the way the commissioner ruled on these matters because, after all, he was not acting as an arbitrator. Were Goodell acting as an arbitrator, his procedural rulings would have demonstrated his "evident partiality," one of the few grounds for setting aside his ultimate conclusions. Of course, Goodell was "partial." He was the chief operating officer of the league acting to protect what he saw as the integrity of his enterprise.

The majority opinion of the Second Circuit states repeatedly that if the union had wanted particular rights and protections for an Article 46 proceeding, it could have (and should have) sought and obtained them in negotiations. Instead, the union accepted the commissioner as the decision maker for one particular kind of disciplinary matter. In the absence of evidence to the contrary concerning the bargaining history of Article 46 -- evidence that is yet to appear -- the union likely recognized Article 46 for what it really is -- a reservation of exclusive managerial rights to protect the integrity of the league.

Commissioner Goodell won a great victory in the Second Circuit, which may have put an end to this episode of NFL history. At the next set of negotiations the Player Association is likely going to attempt to provide for real arbitration of Article 46 issues and the league will resist, arguing that the courts in Brady's case already recognize the current formulation as arbitration. Those negotiations are going to be a rocky undertaking, and the majority of the Second Circuit panel has not made them any easier.