Tom Brady's Legal Victory May Be Short-Lived

A federal judge in New York has vacated Tom Brady's four-game suspension. Brady is understandably pleased, but it may be a good idea to keep the champagne bottles corked for now -- there's a good chance that ruling will be reversed on appeal.

I have no idea what role Brady had in deflating footballs, or whether he did anything improper in connection with the investigation. Let's assume, for the moment, that as a factual matter he's entirely innocent. Let's assume, further, that the NFL's hearing and appeal processes were riddled with errors and that commissioner Roger Goodell incorrectly interpreted the collective bargaining agreement and made multiple other legal mistakes.

Under the law, even if that's all true, it still may be insufficient to justify vacating the suspension. The reason relates to the way the law treats arbitration agreements such as the NFL's CBA.

Any legal framework includes rules about what you can and can't do, and what the consequences can be if you do something wrong -- these are often called the "substantive" rules. There are also "procedural" provisions setting forth how to decide whether the substantive rules have been broken and, if so, what the results should be.

A key part of the procedural framework involves who makes what decisions throughout the process. A court system, for example, can include jurors, trial judges and appellate judges. In many cases, jurors decide factual questions -- for example, in a criminal case, whether the defendant hit the victim and whether he had the intent to cause injury. Trial judges decide legal questions, such as what types of evidence the jurors can hear in making those factual determinations. Appellate judges then decide whether the trial judges answered those legal questions correctly.

There are important boundaries between those roles. A trial judge generally can't override a jury's factual determination (as long as there was some plausible evidence supporting that determination). An appellate court, in turn, is supposed to limit its review to legal questions and not concern itself with whether the trial jury came to the right result. Lawyers know that these lines aren't always scrupulously honored -- an appellate court, for example, might be more inclined to overrule a trial judge's legal decisions if there's a sense that the jury reached an unjust result -- but they're still there.

Arbitration agreements represent a special type of procedural framework. Some groups of people decide ahead of time that if disputes arise between them they'd rather have them decided by one or more private "arbitrators" instead of through the court system. There are various reasons to go this route -- the people involved may want to avoid the immense expense and delays associated with the court system, or may want decisions made by someone with specialized knowledge or experience. (They may just want to avoid the risk of a highly unflattering courtroom sketch.)

In any event, when people make these agreements it's generally understood that the arbitrator's decision will be final. If it were otherwise -- if judges regularly reviewed arbitrators' rulings and vacated the ones they disagreed with -- that would largely defeat the purpose of arbitration. Among other things, if the dispute is going to end up going through the normal court process anyway, having an additional arbitration step at the outset actually makes the process more costly and burdensome. It's true that in certain limited cases a judge can step in and overrule an arbitrator, but those cases have to be truly extreme -- the supposed error usually has to be more egregious, for example, than the type that would be sufficient for an appellate court to reverse a trial judge's decision. Again, that's because any other framework would eliminate many of the benefits of arbitration.

That's why there's a strong possibility that the order vacating Brady's suspension will itself be reversed on appeal. The federal judge hearing the case obviously thought that there were serious problems with the NFL's decisions, both substantively and procedurally. He concluded, for example, that Brady was improperly denied access to certain evidence, and should have been allowed to examine a key witness under oath. He also concluded that Brady didn't have sufficient advance notice of what the penalties could be for the particular violations at issue.

But even assuming the judge was right on all of those points, that still may be insufficient to justify vacating the suspension. In a normal court case, every one of those issues -- what evidence Brady should get, who he should be able to examine, what if anything he did wrong, and what consequences would be fair and appropriate -- would be decided by a judge or jury. The whole point of the arbitration agreement was to transfer that decision making power to certain designated NFL officials, including Goodell. So it really doesn't matter that the judge disagrees with how those decisions were made unless the NFL went far enough outside of the boundaries to satisfy the extreme standard necessary to override an arbitrator's decision, and from what I've seen I don't think it did.

One could legitimately question whether it was a good idea to give such broad powers to a set of decision makers with dubious claims to impartiality. But that's the agreement that Brady and the other players signed onto, as part of an overall deal that they obviously thought was beneficial in light of what they were getting in return. When they did that, they accepted the risk that those decision makers could rule against them, and that even if those rulings were questionable they'd have limited ability to get them reversed.

Rightly or wrongly, the law in this country gives broad deference to arbitrators' decisions and requires extraordinary showings in order to overturn them. There's a strong likelihood that the appellate court will decide that the trial judge gave the arbitration process too little deference in Brady's case, and that the suspension will be reinstated.