Hurley: Takeaways From Ruling Against Tom Brady, NFLPA
By Michael Hurley, CBS Boston
BOSTON (CBS) -- The news that came down Monday afternoon did not come as a complete surprise, not after seeing the three-judge panel pepper attorney Jeffrey Kessler in New York back in early March. That was, without question, a bad day for the Tom Brady camp, and it opened up the possibility that all would not be well for the quarterback and his union in their fight against Roger Goodell and the NFL.
And so, after reading the 33-page ruling by judges Denny Chin and Barrington Parker, as well as the 9-page dissent from Chief Judge Robert Katzmann, the situation has gained some clarity. Chin and Parker were willing to give great deference to Goodell's decision as arbitrator, regardless of the specific circumstances, while Katzmann was unable to intellectually get past some of the glaring issues in the appeal process that took place.
Alas, two beats one, and the ruling played out almost identically to how the courtroom theatrics displayed nearly two months ago.
What this means is that perhaps -- perhaps -- DeflateGate is finally over, albeit with an ending that was not desirable for the Patriots or their fans. There's a slim chance that Brady's case gets reheard en banc by all of the Second Circuit judges, and there remains a slim chance that the case goes all the way to the Supreme Court.
For the sake of all that is decent, let's hope the latter scenario never comes to fruition. Nothing good can come from a case as frivolous as this one going before the Supreme Court of the United States. Whether it were the NFL or the NFLPA taking the case there, the country likely wouldn't have much of an appetite to see a squabble over air pressure inside footballs end up in the highest court in the land.
So, assuming that this decision is indeed final, here are some rolling thoughts from reading the ruling.
--The most eye-opening part of the ruling came on Page 26, when Chin and Parker explained away the issue of a lack of notice. The notice issue, of course, speaks to the fact that there's nothing in writing stating that some involvement in deflating footballs would result in any sort of penalty and there is likewise no precedent of any such punishment for any similar behavior.
But here's what the judges ruled: "Article 46 put [Brady] on notice prior to the AFC Championship Game that any action deemed by the Commissioner to be 'conduct detrimental' could lead to his suspension."
Wow. There is being deferential to Goodell, and then there is being deferential to Goodell. The NFL no doubt rejoiced at seeing these words written on the record in a ruling as high-profile as this one.
--My biggest issue with the ruling came between Pages 19-22. The issue at hand there is that Brady's violation went from "general awareness" of deflation which was found to be "more probable than not" to have happened (as ruled by the Wells report) to Brady having "participated in a scheme to tamper with game balls."
The judges seemed to have ruled that Goodell was free to up the charges against Brady based on new evidence that was presented at Brady's appeal hearing, for which Goodell of course served as the arbitrator.
The problem there is that the judges are seemingly ruling on evidence presented at the appeal hearing, and they're seemingly applying guilt on Brady based off that evidence. For one, none of the evidence presented that day was direct, but mostly, ruling on the evidence is not what Parker and Chin claim to be doing. By getting their fingernails in the nitty-gritty of the appeal hearing, it seems as if they picked and chose which bits of the process they'd like to spotlight while flatly disregarding other parts.
The feeling here -- and maybe it's inaccurate -- was that this section on Pages 19-22 was merely a case of the two judges believing in Brady's guilt, which is not what their stated intention was.
--Specifically, this reasoning on Page 21 seemed questionable:
"The Commissioner did not develop a new basis for the suspension, nor did he deprive Brady of an opportunity to confront the case against him."
Considering Goodell did not allow Kessler to question co-lead investigator Jeff Pash (of Pash/Wells report fame), and considering Goodell did not allow Kessler to question Goodell ... it does feel as though the arbitrator did inhibit Brady's opportunity to confront the case against him.
Later, the judges explained that the courts cannot question the "sound discretion" of the arbitrator. While such a description for Goodell may activate your gag reflex, it is the stance of the court. The judges said they could only interfere if the arbitrator was ruled to have been "guilty of misconduct." I feel comfortable in saying that Goodell did indeed commit some misconduct throughout the process, but I am not a judge ruling on this case, and so that opinion is irrelevant.
--The cell phone. Everything continues to center around the cell phone. It's really not worth opening up a debate about workplaces' right to private communications now. That fight has been hashed out and seemingly nobody has changed an opinion on it either way. But it's clear that the judges struggled to get past the destruction of the cell phone, and they supported Goodell's right to draw adverse inferences toward Brady because of the destroyed cell phone.
--It's complicated, but the judges didn't regard the Wells report as significant, despite Goodell (and/or Troy Vincent) relying solely on the findings of the Wells report to issue the punishment in the first place. Ergo, the judges looked only at the proceedings of the appeal hearing at NFL headquarters, thereby accepting the Wells report at face value. Considering all we have come to know about the Wells report over the past year, and considering all we know about members of the NFL front office disseminating false information to control public opinion about the charged parties, that is perhaps the most significant factor of the judgment process.
--It was significant that the judges ruled to address Richard Berman's unaddressed issues, so as not to give Berman a chance to once again rule to vacate the award, only to have that eventual ruling sent back to the Second Circuit. You'll remember (maybe) that in Berman's final ruling, he left himself some wiggle room, so to speak, in the event that the case was remanded back to his courtroom. But Chin and Parker nipped those issues in the bud by ruling on them preemptively, while admitting that such a decision is unusual.
The judges ruled that Goodell was within his power when he delegated authority to Vincent before "authorizing" the punishment himself and also that Goodell was not evidently partial when he served as abritrator. The judges' message was clear in these rulings: if the NFLPA wanted a better process, the union could have and should have negotiated it in the collective-bargaining agreement. Here are the two conclusions on those matters:
"If it is seriously believed that these procedures were deficient or prejudicial, the remedy was to address them during collective bargaining. Had the parties wished to otherwise limit the arbitrator's authority, they could have negotiated terms to do so."
"Had the parties wished to restrict the Commissioner's authority, they could have fashioned a different agreement."
You can almost hear the open hand smacking DeMaurice Smith right in the kisser. Ouch.
--Katzmann's dissent was based on Goodell upping the charges from "general awareness" to "participating in a scheme." He said that in doing that, Goodell undermined fair notice and removed the opportunity for Brady to confront the case against him. Katzmann also seemed personally affected by Goodell's actions.
"[O]n a more fundamental level, I am troubled by the Commissioner's decision to uphold the unprecedented four‐game suspension," Katzmann wrote. "The Commissioner failed to even consider a highly relevant alternative penalty and relied, instead, on an inapt analogy to the League's steroid policy. This deficiency, especially when viewed in combination with the shifting rationale for Brady's discipline, leaves me to conclude that the Commissioner's decision reflected 'his own brand of industrial justice.'"
--Katzmann's ruling indicates that the reasoning for Goodell (as arbitrator) upholding the punishment from Goodell (as commissioner) was based on new evidence at the appeal hearing, which violates the CBA.
"The Commissioner's final written decision, however, went further [than the Wells report],'" Katzmann wrote. "It found that Brady 'knew about, approved of, consented to, and provided inducements and rewards in support of a scheme by which, with Mr. Jastremski's support, Mr. McNally tampered with the game balls.' Regardless of whether the difference between the Wells Report and the Commissioner's decision constitutes a 'quantum leap,' I am convinced that the change was material. The misconduct found in the Wells Report is indisputably less culpable than inducing and rewarding cheating through the payment of memorabilia, as was found in the Commissioner's final decision."
Katzmann argued that Brady did not have a chance to properly defend himself against this finding by the commissioner, because it was not part of the initial ruling.
"Accordingly, I would find that the Commissioner exceeded his authority, to Brady's detriment, by resting Brady's discipline on factual findings not made in the Wells Report," Katzmann wrote.
--Katzmann also couldn't get past the disparity between a penalty for using Stickum (an $8,268 fine) and the four-game suspension that Goodell ultimately enforced on Brady.
"Notwithstanding these parallels [between Stickum use and deflation involvement], the Commissioner ignored the Stickum penalty entirely," Katzmann wrote. "This oversight leaves a noticeable void in the Commissioner's decision, and in my opinion, the void is indicative of the award's overall failure to draw its essence from the CBA. ... The lack of any meaningful explanation in the Commissioner's final written decision convinces me that the Commissioner was doling out his own brand of industrial justice. ... This breach of the limits on the Commissioner's authority is exacerbated by the unprecedented and virtually unexplained nature of the penalty imposed."
--Katzmann's difference in opinion with Parker and Chin is summed up in this one sentence:
"The Commissioner's authority is, as the majority emphasizes, broad. But it is not limitless, and its boundaries are defined by the CBA."
--I have to say, I liked Katzmann's closing paragraphs:
"I end where I began. The Article 46 appeals process is designed to provide a check against the Commissioner's otherwise unfettered authority to impose discipline for 'conduct detrimental.' But the Commissioner's murky explanation of Brady's discipline undercuts the protections for which the NFLPA bargained on Brady's, and others', behalf. It is ironic that a process designed to ensure fairness to all players has been used unfairly against one player.
I respectfully dissent."
--The reaction by many is "the NFLPA gave Goodell this power so they have nothing to complain about." I hear you, I know that the NFLPA did a bad, bad job in the negotiations for that CBA. They came away with nothing because the players didn't want to miss games, aka the only chance they had to actually hit the owners where it hurts. I don't object to this.
But please understand: There was nobody on the planet who could have foreseen a situation even resembling this bizarre mess. Since the dawn of the NFL, the commissioner has never been a guy with a bachelor's in economics pretending to be a lawyer and a judge so that he could reinforce a faded image of him being a hard-ruling Wild-West sheriff. When the union conceded powers to Goodell in that CBA, they trusted that he'd follow the lead of all of his predecessors by being a fair leader.
Yet when independent arbitrators regularly ruled against him, and with a need to try to establish some level of authority after badly botching the Ray Rice situation, Goodell gamed the system -- something no commissioner had ever done in that way before.
So yes, in the sense that the union afforded Goodell too many powers in the CBA, that's true. But please don't pretend as if this scenario could have ever been forecast.
--Overall, it's hard to know what will come next. As Daniel Wallach stated on Zolak & Bertrand, the fact that the dissent comes from the Chief Judge of the Second Circuit, and the fact that the case is as high-profile as it is, suggests there's a chance that the NFLPA could appeal for an en banc hearing. That would involve both sides' cases being considered by the entire panel of judges in the Second Circuit, a process which would (in my opinion) muddy the waters even further by adding more human opinions to a matter that clearly is not a black-and-white issue in terms of the law. Much too much of this case -- again, my opinion -- has relied on the personal opinions and stances of the judges involved, so I'm not sure how adding more judges and more opinions to the mix in a case as silly as this one helps either side.
Perhaps Brady continues the fight, and if so, we'll all be tuned in. But if this ruling was indeed the final chapter of this sordid ordeal, it is at least clear from seeing two federal judges rule one way and two federal judges rule the other that this case has indeed always been the perfect storm of opinions, hearsay and drama.
You can email Michael Hurley or find him on Twitter @michaelFhurley.
Listen to Hurley on Felger & Mazz below: