Hurley: After Losing DeflateGate, Roger Goodell Should Be Embarrassed
BOSTON (CBS) -- Throughout the needlessly long, excessively unfair process through which Tom Brady was forced to go, Roger Goodell and the NFL staked their whole case on Article 46 of the collective-bargaining agreement.
Article 46, as Goodell and his lawyers reiterated time and time again, grants the commissioner a broad range of power -- power which cannot be questioned (and certainly not overturned) by a federal judge. This was, in sum, the NFL's case in Judge Richard M. Berman's courtroom over the past month: We have Article 46, and therefore you must rule for us. Plain and simple.
So when Berman issued his 40-page ruling on Thursday morning, it was truly remarkable that the federal judge was able to cite Article 46 when powerfully and unassailably striking down the NFL's case.
As part of the three-plus pages written by Berman about the NFL's refusal to allow Tom Brady's side to question NFL general counsel and co-lead investigator Jeff Pash during the arbitration hearing, the judge delivered a devastating haymaker.
Berman wrote: "NFL precedent demonstrates that, in Article 46 arbitration appeals, players must be afforded the opportunity to confront their investigators."
That one sentence in the scathing 40-page ruling stood out more than any other, for it took the NFL's only argument and used it to assign guilt on the league.
It was, of course, just one of many harsh statements against Goodell, and the initial reaction to Berman's ruling should be universal.
Roger Goodell ought to be embarrassed.
Embarrassed.
Ashamed. Humiliated.
In fact, back when Chris Mortensen falsely reported that 11 of 12 Patriots' footballs were a full 2 PSI under the allowable limit, an NFL source was described as being "disappointed, angry [and] distraught" upon learning the "news" -- which was falsely provided by another NFL source.
In the wake of Judge Berman's ruling, every single person involved with the NFL -- from owners to executives to the lowest of low-level employees, all the way up to the commissioner himself -- should be equally as distraught that the man in charge of their entire operation believes he is above the law.
Thanks to Judge Berman, Goodell was reminded for the umpteenth time that, yes, the rules do apply to him. And in the case of relentlessly persecuting Tom Brady, the commissioner broke many of them.
And so, the four-game suspension -- the one founded on zero precedent -- has been wiped away, with Judge Berman citing case after case after case after case to explain why the NFL did not hold a fair process on Brady from the very beginning.
The briefest of briefest recaps of Berman's ruling can be summarized by the judge's bullet points:
A. Inadequate Notice of Discipline and Misconduct
i. No Notice of Four-Game Suspension: Steroid Use Comparison
ii. No Notice of Any Discernible Infraction
iii. No Notice of Suspension as Opposed to Fine: Competitive Integrity Policy vs. Player Policies
B. Commissioner Goodell Improperly Denied Brady the Opportunity to Examine Designated Co-Lead Investigator Jeff Pash
C. Commissioner Goodell Improperly Denied Brady Equal Access to Investigative Files
It was in that last point, point C, where Berman's words resounded strongest. Experts and insiders have stated that the NFL would appeal a ruling against the league, because the NFL does not want players to feel as though they can simply take a case to court if they ever disagree with a disciplinary decision. (Surely enough, Goodell will indeed appeal.)
However, it was painfully clear in Berman's ruling that by so brazenly bypassing any and all semblance of fairness, the NFL and Goodell have essentially forced players to take cases to court if they want to get even a remote chance of a fair shake.
If you'll excuse the long excerpt, this writing from Berman is important:
"Brady contends that, to his detriment, he was denied the opportunity effectively to challenge the conclusions of the Wells Report and that such denial 'was especially egregious considering the NFL's counsel [the Paul, Weiss firm] at the arbitration did have access to the files,' which Brady was seeking. The Court notes that the Paul, Weiss role in this case seems to have 'changed' from 'independent' investigators to NFL 's retained counsel at the arbitral hearing. Among other things, this change in roles may have afforded Goodell (and Pash) greater access to valuable impressions, insights, and other investigative information which was not available to Brady.
"The Court finds that Commissioner Goodell's denial of the Players Association's motion to produce the Paul, Weiss investigative files, including notes of witness interviews, for Brady's use at the arbitral hearing was fundamentally unfair and in violation of 9 U.S.C. § 10(a)(3) and that Brady was prejudiced as a result," Berman continued. "The interview notes were, at the very least, the basis for the Wells Report, and Brady was prejudiced by his lack of access to them. Brady was denied the opportunity to examine and challenge materials that may have led to his suspension and which likely facilitated Paul, Weiss attorneys' cross-examination of him. Because the investigative files included the unedited accounts of the witness interviews, the Wells testimony at the arbitral hearing failed to put Brady 'in the same position as the document[s] would [have].'
"Compounding Brady's prejudice is the fact that, as noted, Paul, Weiss acted as both alleged 'independent' counsel during the Investigation and also (perhaps inconsistently) as retained counsel to the NFL during the arbitration. Paul, Weiss uniquely was able to retain access to investigative files and interview notes which it had developed; was able to use them in direct and cross-examinations of Brady and other arbitration witnesses; share them with NFL officials during the arbitral proceedings; and, at the same time, withhold them from Brady."
After that, how on earth is anybody ever supposed to trust Goodell again? Goodell has stated since the onset of "DeflateGate" that the league cares only about integrity, that the league simply wants to do what's right, that the league will punish those who lie or cheat -- all while deceiving and lying to the public throughout the entire process. In suspecting a player of shady behavior, the NFL and numerous league officials (including their chief) acted worse than anything Brady could have done.
The conditions described by Berman should be absolutely terrifying for any NFL player, because it shows just how Goodell conducts himself behind the scenes, all the while touting his own "integrity" in public. Instead of "protecting the shield," Goodell sought only to protect his own case.
And to be clear, a judge overturning an arbitration award when a CBA exists remains an extremely rare occurrence. On that front, the deck was stacked against Brady from the start. Yet the NFL's case was so obviously flawed, so inherently unfair, that Judge Berman found multiple reasons to overturn the suspension.
Has Goodell learned his lesson? Of course not. The commissioner waited all of two hours before announcing that the league would appeal Berman's decision, thereby extending the courtroom drama for several more months -- or perhaps even longer. In the same breath, Goodell hypocritically stated, "we look forward to focusing on football and the opening of the regular season."
This is the man who needlessly turned what was perhaps a minor violation, one which had been ignored for the previous 50 years to the extent that zero rules existed regarding the protocol, into a major felony. This is the man who took arguably the greatest quarterback in history, one whose impact on the sport will endure for the next 100 years and beyond, and painted the word "CHEATER" across his forehead. This is the man who, despite a federal judge pointing out numerous instances of just how poorly and shamefully he ran the appeal process, still believes he is right.
This is a man who, again, should feel embarrassed.
When Ray Rice and Adrian Peterson won their cases against Goodell, there was hardly much celebration around the country. After all, Rice and Peterson committed violent acts against a woman and a child, respectively, and they denied no such wrongdoing. There was not a groundswell of public support for the men who had committed criminal acts when they exposed the commissioner's misbehavior (even though the commissioner was proven to have lied about Rice, who was perfectly honest during his own appeal hearing), and so, the spotlight did not shine quite as brightly on Goodell as it rightfully should have.
But this? This is worlds apart. This is leading the national news: Brady Defeats Goodell In Court. And provided anyone takes the time to thoroughly read Berman's ruling, this should spell the very end to anybody believing Goodell possesses so much as an ounce of credibility.
Of course, he won't lose his job -- not now, at least. The league makes too much money, and frankly, replacing a commissioner is a headache that no NFL owner really wants to voluntarily suffer. If they don't absolutely have to replace their commissioner, they will not go out of their way to do it.
At the same time, those NFL owners may not have the stomach to watch Goodell continue his quest of self-serving power in a fight that has unquestionably become personal to the commissioner. NFL owners might rightfully believe that a truly independent arbitrator is the best person to resolve conflicts. Surely, a federal judge would almost never overturn a decision reached by an independent arbitrator who properly ran a fair hearing, and so the league would avoid sending its star players to court on a basis that's becoming increasingly routine.
Given that Goodell paid millions of dollars for an "independent" investigation, relied solely on the results of that investigation to distribute punishment, later escalated the charges against the player based on no new evidence, denied the player the chance to question the NFL-paid lawyer who made unannounced and untracked edits to the final investigative report and treated the player as an obviously guilty criminal for several months, the commissioner proved that he is more probable than not to be completely unfit to ever hear an arbitration case again.
But Goodell understands what's at stake if Berman's ruling is upheld by the Second Circuit. If Berman's ruling stands, then Goodell loses his ability to unilaterally serve as judge, jury, and executioner, and he will lose his right to arbitrarily decide what's important and who should be punished.
These are powers which have been granted to the commissioner for some time, but no man has ever abused them as much as Goodell. Now, funny enough, it is the most senseless, unnecessary case that will strip Roger of those powers forever.
How embarrassing.
In appealing the case, Goodell proves that he has not learned his lesson. If anything, he's doubling down, seemingly determined to waste the time of even more judges and thereby wasting even more taxpayer dollars because he remains out for blood on Tom Brady. To say the least, it is behavior unbefitting that of any leader, let alone the public face of the world's most powerful sports league. Yet given Goodell's history, it's just about what we'd expect him to do.
Goodell stated on Thursday that he very much looks forward to everybody focusing on football. That's because, more than anything, he'd prefer everybody ignore how disreputable, untruthful and detached from reality the commissioner really is. Unfortunately for Goodell, this will not be one that anybody ever forgets.
Brady Defeats Goodell In Court. How embarrassing.
Read more from Michael Hurley by clicking here. You can email him or find him on Twitter @michaelFhurley.
