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Second Circuit Reverses Trial Court, Reinstates NFL’s 4 Game Suspension of New England QB Tom Brady


Whether you love or hate the New England Patriots and their celebrity quarterback Tom Brady – and fan opinion tends toward those extremes – the decision last week by the U.S. Court of Appeals for the Second Circuit was a victory for collective bargaining and labor arbitration, even if it marks a high-profile loss for Brady and the NFL Players’ Association. National Football League v. NFLPA and Tom Brady (Nos. 15-2801; 15-2805) (April 25, 2016). The decision reinstates a four-game suspension the National Football League, and its Commissioner Roger Goodell, imposed on Brady based on its finding that he was involved with equipment tampering at the January 2015 AFC Championship against the Indianapolis Colts.

The “deflate-gate” scandal – using under-inflated footballs for competitive advantage – gave us a rare behind the scenes look at undiscovered equipment manipulation by the Superbowl champion Patriots. However, the issues the Second Circuit faced in its review of the matter were not rare or new. To the contrary, this area of labor law is well settled. The Second Circuit explained that a courts’ role in reviewing labor arbitrations is extremely narrow, noting “…it is not our task to decide how we would have conducted the arbitration proceedings, or how we would have resolved the dispute.” NFL v. NFLPA, supra at * 12. “It is the arbitrator’s construction of the contract and assessment of the facts that are dispositive, ‘however good, bad, or ugly.’” Id.

According to the investigation conducted by the NFL, Patriots’ equipment staff deflated game footballs after the footballs had been examined by the referee. The investigators reviewed text messages among Patriots’ staff referencing Brady’s preferences, and also examined phone records showing equipment staff was in contact with Brady. Investigators had asked Brady to produce emails and text messages from a specific time period. He refused. Based on the investigation, the NFL’s Goodell concluded that although there was no direct evidence of Brady’s involvement, it was more “probable than not” that he was generally aware of deliberate efforts to under-inflate footballs. The Commissioner authorized a four ‐ game suspension pursuant to Article 46 of the CBA between the League and the NFL Players for engaging in “conduct detrimental to the integrity of and public confidence in the game of professional football.”

Brady’s Union appealed and pursued arbitration under the collective bargaining agreement. However, in what may be one of the most unenviable provisions in a labor agreement, under the NFLPA contract with the League, the Commissioner can preside over player appeals of discipline. Thus, instead of having a neutral and independent arbitrator, Commissioner Goodell – the official who issued the four-game suspension – convened the arbitration hearing. He served as both prosecutor and appellate judge under the system the NFL and players’ union had bargained. Not surprisingly after the “arbitration” before Goodell he sustained the discipline, and drew adverse inferences based on Brady’s deliberate refusal to provide information and cooperate with investigators. Goodell also concluded that Brady willfully obstructed the investigation by arranging for his cellphone to be destroyed, knowing it contained potentially relevant information.

Although noting that it was unusual to have the League Commissioner sitting in review of his own decision, the Court found this is what the parties bargained for. The League and the Players’ Association negotiated a

CBA to specifically allow the Commissioner to sit as the arbitrator in all disputes brought pursuant to Article 46 […] They did so knowing full well that the Commissioner had the sole power of determining what constitutes “conduct detrimental,” and thus knowing that the Commissioner would have a stake both in the underlying discipline and in every arbitration brought pursuant to [that] Section [].

Id. at *33. Had the parties wanted to restrict the Commissioner’s power they could have bargained a different agreement.

From a labor arbitration perspective, the Court got it right. While the Union raised valid arguments that might have carried the day before an independent and neutral arbitrator, it could not demonstrate that Goodell failed to even arguably apply the CBA. Perhaps the Commissioner deviated from past arbitration precedent, failed to address certain evidence, or failed to limit the hearing strictly to that of an appeal rather than one for considering new evidence. But so long as the “award draws its essence from the [CBA] and is not merely the arbitrator’s own brand of industrial justice” it must be confirmed. Id. at 12 (internal cites omitted). Tempting as it may be, it is not the court’s place to substitute its judgment or analysis for that of the arbitrator. Perhaps the next NFL Players CBA will modify the role of the Commissioner for future discipline arbitrations.