Judge Berman Sets Tom Brady Free!

Federal Judge Richard M. Berman has sacked NFL Commissioner Roger Goodell, vacating his four-game disciplinary suspension of star Patriots quarterback Tom Brady. The NFL announced immediately that it would appeal. Deflategate lives, albeit barely.

Judge Berman's decision relies on basic arbitration law. An employee must be treated fairly, and that means that he must be given advanced notice of the potential for discipline if he engages in certain misconduct. The NFL never informed players that they risked suspension for tampering with equipment or not fully cooperating with a League-directed investigation. It never informed players that suspension could result from being "generally aware" of equipment tampering by other employees. The Court seemed astounded that the Commissioner compared the allegations against the Patriots' quarterback with violations of the negotiated steroid policy.

The second ground relied upon by the Court involved the Commissioner's refusal to allow Brady's attorneys to cross-examine Jeff Pash, the NFL's Executive Vice-President and General Counsel. Pash apparently edited the Report issued by Ted Wells. This refusal kept the Brady team from ascertaining the role the NFL played in formulating the Report which was the basis for the Commissioner's decision.

Finally, the Court relied upon the fact that the Commissioner denied Brady's team access to investigative files, including witness interview notes. In a normal arbitration case, a union would have obtained that information as part of the grievance procedure. Here, the Commissioner denied the employee those same discovery rights.

In deciding to vacate the Commissioner's discipline, Judge Berman applied well-understood principles of labor law, in particular with regard to a court's review of a determination made under a collective bargaining agreement. Fundamental fairness is essential - not optional. If the NFL pursues its appeal, it is likely the Second Circuit will agree and affirm Judge Berman's ruling.

The NFL could have avoided this self-inflicted wound by distributing to all players the Competitive Integrity Policy that was only provided to club management. The Commissioner could have allowed Jeff Pash to testify and supplied the documents the Players Association sought. If the Commissioner was intent on punishing Brady - and the Court does not make any findings in that regard - he could have done so without violating Brady's fair process rights.

As most would acknowledge, this case has gone on too long and promises to last even longer. It is hard to know exactly why the NFL put all its chips on punishing its "golden-boy" quarterback. We are told that some club owners thought the Patriots deserved to lose big after dominating the League for so long. Others found Bill Belichick to be Rasputin in a hoodie, scheming to undermine his rivals' best-laid plans. While it might be preferable for the League as a whole to have many different clubs win the annual trophy, the Patriots just seem to get more out of its equal share of the financial resources. It was easier to try to take the Patriots out using the Commissioner as the instrument of punishment against their quarterback.

In any case, so far the plan has not worked, and the Patriots will start the season with No. 12 under center. To prevail, the rival clubs must win the game on the field and not in the Commissioner's boardroom or in the federal courts.

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