Deflategate: The Monster That Will Not Die

NEW YORK, NY - SEPTEMBER 19:  NFL Commissioner Roger Goodell talks during a press conference at the Hilton Hotel on September
NEW YORK, NY - SEPTEMBER 19: NFL Commissioner Roger Goodell talks during a press conference at the Hilton Hotel on September 19, 2014 in New York City. Goodell spoke about the NFL's failure to address domestic violence, sexual assault and drug abuse in the league. (Photo by Elsa/Getty Images)

You remember the Japanese monster movies where the army and navy launch bombs aplenty against the evil brute who came up from the sea. Nothing seems to stop it! How will humanity survive? By the final reel, of course, something stops the monster just before it ingests the capital city and all its inhabitants.

Deflategate is getting to feel like a monster movie that will not die. For reasons never adequately explained, the NFL Commissioner, Roger Goodell, has upheld an onerous four-game suspension imposed on football's premier quarterback, Tom Brady. He explains his decision in a twenty-page opinion that adds a new ground for the discipline -- an alleged deliberate cover-up by the quarterback. You can tell when an administrator has lost confidence that the prior charge -- here deflating footballs -- will fully support a $2 million penalty, approximately the amount Brady will lose in salary if the four-game suspension stands. He shifts his focus to a new ground -- the destruction of the cell phone. It makes no difference that the NFL already had Brady's texts to a locker room attendant from their cell phones. Brady had already told the investigators that he would not allow them to go "fishing" on his cell phone, and so the destruction of the phone is irrelevant. Lawyers would label the NFL's new argument a "red herring."

Remarkably, the NFL reportedly brought suit in federal court in Manhattan to confirm Goodell's decision. It did so in order to preserve a "home field advantage" and to keep the dispute away from Judge David Doty in Minneapolis who has heard NFL cases for decades, often siding with the union's argument. At times, albeit rarely, employers will file suit to enforce arbitration decisions issued by neutral adjudicators. That is not what happened here. While no one should doubt the commissioner's power under the Collective Bargaining Agreement to hear this appeal, he was not sitting as a neutral arbitrator. It is not clear that the court even has jurisdiction to hear the NFL's case.

In any case, the NFLPA will initiate its own suit to contest the commissioner's action. The suit can be brought anywhere the NFL does regular business, but will likely be pursued in Minneapolis where Judge Doty recently decided a similar case involving Adrian Peterson, the great Vikings running back. Although I have criticized Judge Doty's reasoning in that case, a federal court certainly has the power to determine whether Goodell's decision was "arbitrary and capricious," and thus to set aside the penalty. That determination would be based on issues involving procedural fairness and how the commissioner's office has dealt with previous cases. Like cases must be treated alike. Here is where the Commissioner's decision will run into trouble.

Prior disciplinary cases involving a player's lack of cooperation with an NFL investigation has resulted in a substantial fine, but no lost games. Foreseeing this serious problem, in his opinion the commissioner likens Brady's transgression to a violation of the performance-enhancing drug policy, thereby mixing "apples" with "oranges," as lawyers like to say. First of all, the four-game suspension under the drug policy was the product of negotiations between the NFL and the NFLPA. There was no negotiation on the issue of deflating footballs or cooperating with an NFL investigation. Second, the penalty imposed must be proportionate to the offense committed. The Wells Report, upon which the commissioner relies, found that Brady was "generally aware" that footballs were being deflated below the 12.5 psi standard. Is that a football "felony" like the use of banned substances?

The first issue the federal court (whether in New York or Minneapolis) will have to address is whether to grant a temporary injunction to maintain the status quo while the litigation proceeds. To obtain the injunction the, NFLPA must establish for the court a likelihood that it will prevail on the merits and that imposing the penalty would result in "irreparable injury." The union lawyers should be able to meet both standards. On its face, a four-game suspension based on a transgression of a non-existent rule is questionable. Loss of the opportunity to play in one-quarter of the regular NFL season is certainly irreparable injury. Brady can be paid the money he will lose, but the games cannot be replayed.

It is likely that the "Monster of Deflategate" will continue to haunt the good people of New England for many months to come.

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