Judge Vindicates Tom Brady, Embarrasses NFL

NFL Commissioner Roger Goodell leaves Federal court in New York,  Monday, Aug. 31, 2015. Last-minute settlement talks between
NFL Commissioner Roger Goodell leaves Federal court in New York, Monday, Aug. 31, 2015. Last-minute settlement talks between lawyers for NFL Commissioner Roger Goodell and New England Patriots quarterback Tom Brady have failed, leaving a judge to decide the fate of "Deflategate." (AP Photo/Richard Drew)

Obviously, Judge Richard Berman is not a die-hard New York football fan or if he is, he was able to put that bias aside. Even if you despise Tom Brady, the overturning of his suspension was the right legal decision. Judge Berman did not rule on whether Brady knew or didn't know about the deflation of balls. He ruled on the legality of the arbitration process employed by the NFL. This is unusual. Courts rarely overturn arbitration decisions. If they did, everyone who lost would challenge the arbitration decision and that would undermine the point of the process. Arbitration is an alternative to litigation.

However, Berman found so many glaring legal insufficiencies with the NFL's procedures that he felt the need to overturn it as a miscarriage of justice.
First and foremost, he ruled that Brady was not given notice that he would be punished or that his alleged misconduct was worthy of a punishment. The Collective Bargaining Agreement is silent on whether a player will be punished for not handing over text messages, emails and certain other documents when they are accused of being "generally aware" of something. Furthermore, Ted Wells, the "Deflategate" investigator, admitted in testimony that he never notified Brady that he would be punished for not handing over requested documents.

Second, the league never gave Brady the opportunity to question one of its lead investigators. Third, the league never gave Brady the opportunity to review critical documents containing interviews with witnesses, which formed the foundation of his suspension. In legal terms, Brady couldn't cross-examine investigators or witnesses nor could he challenge evidence presented against him. Interestingly, arbitrations don't formally require the process of discovery that litigation does. During discovery, both sides must hand over all evidence to the other side to prepare a defense. However, Judge Berman indicated he believed it to be an integral part of the process even if not statutorily required.

Now, a big question in this case was regarding Roger Goodell's impartiality. The judge did not rule on this specifically, but took plenty of opportunities to indicate his disdain for Goodell's partiality. Specifically, he places quotation marks around the word "independent," when referring to the investigation. He touches upon the fact that the legal firm, Paul, Weiss, was not only working with Ted Wells on the investigation but also employed by Goodell. He says, Goodell would have had to rule against several people working for him to rule in Brady's favor.

The most important point, however, coming out of this ruling, is that the NFL's procedures and standards are legally insufficient even for an arbitration, which has looser standards than litigation. It has no specific policies governing punishment for deflating balls. The league tried to justify its punishment of Brady under the Collective Bargaining Agreement. First it used the clause regarding punishment for use of Anabolic Steroids and Other Substances. Judge Berman said the two are not comparable and that clause can't be stretched to an entirely different circumstance. Next, the league tried to say Brady's uncooperative behavior constituted "conduct detrimental to the league." Again, the judge says, this is way too broad. He even goes on to say that when Ray Rice and Adrian Peterson were suspended, it was at least justified under a specific domestic violence policy not simply the "conduct detrimental to the league" clause. The judge goes on to discuss Brett Favre's fine in 2010 for violating the league's sexual harassment policy. This indicates that he seemed to think a fine may have been more appropriate in this circumstance. It's clear the judge was not in favor of a suspension for someone who was "generally aware" of the situation. He definitely wasn't in favor of a suspension, absent any direct proof that Brady actually knew or participated.

The ruling is embarrassing for the NFL. Shockingly, the NFL has no policies or procedures in place governing the testing of air pressure in balls, the presentation or standards of proof for ball deflating allegations or the appropriate punishment. Much of the evidence presented in the arbitration hearings by the NFL would've never been admissible in a court of law. Hence, this case may serve as a tipping point for the NFL to create such a policy. But, it's going to be a hard sell to get the player's union and players to sign on to any policy that requires them to hand over their personal emails and text messages absent a subpoena by a court of law. I doubt Roger Goodell will be acting as an arbitrator ever again. We shall see if the NFL presses the issue and appeals to the U.S. Circuit Court of Appeals. The league can also request a legal stay and put a hold on Berman's decision. It's unlikely the NFL will be able to stay Berman's decision because it would have to first try to get that stay from Berman. Why would the judge place a stay on his own ruling? He ordered that the suspension be vacated immediately. Plus, the league would have to show a likelihood of success on appeal and irreparable injury if Brady is allowed back on the field.

The NFL would've fared better coming to a settlement agreement with Brady. To cap it all off, because the focus is on the league and its procedures, we still don't know whether Brady was guilty or not in Deflategate. But, if there were any incriminating emails or texts sent, there was someone on the other end of those messages who could potentially leak the truth one day. If so, Brady took a big risk maintaining his innocence under oath in the face of potential perjury charges. For that reason, some may believe he was innocent. Regardless, if the league had its procedural act together, it may have gotten away with suspending Brady for his shady conduct since the judge never ruled or planned to rule on the original findings.

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