Tom Brady suspension nullified....

Submitted by DFW_Michigan_Man on September 3rd, 2015 at 10:16 AM
Can't link from phone but just saw on Twitter. Go Blue!



September 3rd, 2015 at 10:31 AM ^

Good for Tom and fuck Goodell.

But, and it is a big "but", it would not shock me if the NFL files an appeal and prevails because of the power given to Goodell via the collective bargaining agreement reached with the NFL Players Association.  Further, the appellate court could give its decision late in the season or during the playoffs.

I do IP work and this is not my area of expertise, but there is some merit to the argument presented by the NFL.  Perhaps on of our Mgolawyers versed in labor law might weigh in on this issue.

MI Expat NY

September 3rd, 2015 at 11:30 AM ^

Do you (or anyone) know the deference given to the District Court in these types of decisions?  

Having briefly read the opinion, it seems to me that the NFL didn't even try to avoid the same notice problems that plagued their other punishments overturned by the Courts and true independent arbitrators.  If anything, they almost seemed to be actively trying to make everything worse by not allowing Brady to question the NFL lawyer, hiring Wells to represent the NFL at the arbitration hearing, and changing the basis for the punishment after the arbitration hearing.  

Roger Goodell screwed the pooch every step of the way.  I don't think this is being overturned.

A couple other things of note.  The Court left some arguments on the table that they would probably revisit even if the 2nd Circuit reverses.   Maybe it's my own bias speaking, but I got the sense that the Judge personally thought the findings of the Wells report were bullshit.  



September 3rd, 2015 at 3:27 PM ^

While driving I heard the news, and the key words "his own brand of industrial justice."  I knew that was a slam dunk for Brady.  I posted the case this was from yesterday and those are the magic words I was hoping for as the strongest legal basis to avoid a turnover on appeal.  Basically, if he ruled on the facts the ruling would be overturned.  But he hit the major exception cited by the Supreme Court to deference in arbitratator decisions.  I'm reading the rest of the opinion to see the actual context the ESPN report took it from.  


September 3rd, 2015 at 4:02 PM ^

The way this order is written, is even if an appeals court kicks it back on the grounds in the order, the other grounds for Brady's other claims (see section V) would then been revisited.  So the appeals cout would either have to rule on these issues also without kicking it back to Berman or step into the fact finder role of a Federal Judge on these issues.  Berman, just checkmated the NFL from resolving this anytime soon with an appeal.  

Surveillance Doe

September 3rd, 2015 at 10:43 AM ^

While I think the suspension itself was baseless and pretty blatantly unreasonable, I really did not expect this to be overturned. The question before the court was not whether Goodell was wrong in assessing a punishment. The question was whether he had exceeded his authority. The NFLPA bargained to give him that authority.

That being said, there's no way this judge didn't consider being overturned on appeal. My bet would be that his basis was that a rule was already in place for this very infraction, which did not authorize a suspension, and, based on those grounds, Goodell over-reached. I'm very interested to read this decision.

Number 7

September 3rd, 2015 at 11:02 AM ^

I'm with Franklin on this.  It was clear that Judge Berman thought the NFL was full of crap.  what was not at all clear was whether Berman would determine he had the authority to overturn a process that had been written in to the NFL's CBA with its Player's Association.

I was expecting an opinion in which Berman excoriated the NFL for its ham-handed approach to the case, but then said "hey, I can't do anything about it."  (As far as I can tell, most labor lawyers agreed with some version of that.)


September 3rd, 2015 at 11:18 AM ^

I was expecting something similar, i.e., Berman indicating that on the merits, the NFL had no case, but due to Goodell being the "judge, jury and executioner" per the language in the CBA, the judge's hands were tied and he could not overturn the suspension.

I have wondered for a while whether Brady has adequage basis for an action against the NFL for libel.  If he truly had no knowledge of deflated balls, such a proceeding would get into the merits of Wells' report.  If you read the transcript of Brady's appeal hearing, an expert tore the scientific aspects of the Wells' report, i.e., the manner in which the Ideal Gas Law wasn't correctly applied, the lack of knowledge of which gauge was used, etc., into little pieces.


September 3rd, 2015 at 1:07 PM ^

A defamation suit here would have exceedingly little chance of success: because Brady is a public figure he would need to show that the NFL acted with actual malice: actual knowledge of the falsity of its allegations or reckless disregard for their truth or falsity.

The Wells Report, for all its (many) faults, covers their ass on the reckless disregard prong, and since there was at least some corpus of evidence that supported the finding and the investigation, it would be very difficult to expect a jury to find that the NFL knew its allegations were capital-f false when it made them.

I agree with you, but the standard of proof would not be on Brady's side, and I would be very surprised if he filed such an action.


September 3rd, 2015 at 1:26 PM ^

might be that Judge Berman used Article 46 of the CBA against the NFL. The NFL thought Article 46 made them and Goodell invincible and Berman slapped them in the face with this: "NFL precedent demonstrates that, in Artice 46 arbitration appeals, players must be afforded the opportunity to confront their investigators." 

So the Judge took the NFL's only argument and buried them with it. Absolutely beautiful. The NFL will not win an appeal. 

Surveillance Doe

September 3rd, 2015 at 11:19 AM ^

I expected the exact same thing. I just finished reading the decision, and the notice factor is comprehensively covered. An appeal on this wil be a real uphill challenge. Also, this is precisely what I was expecting to see after hearing Brady had prevailed:

"Brady was on notice that equipment violations under the Player Policies could result in fines. See discussion supra p. 28. He had no legal notice of discipline under the Competitive Integrity Policy, which is incorporated into the Game Operations Manual and distributed solely to- and, therefore, provides notice to- "Chief Executives, Club Presidents, General Managers, and Head Coaches," and not to players. 20 Game Operations Manual at A2."


September 3rd, 2015 at 10:41 AM ^

I get what you're saying but how long does Goodell and the NFL want this to play out and stay in the media?

He's got massive egg on his face and the longer this has been drawn out and the more facts that have been uncovered, it seems like the media story has turned from the Pats cheated to how the NFL botched the entire thing.



September 3rd, 2015 at 12:53 PM ^

but the NFL, and particularly Goodell, is looking just as bad with their handling of the Brady/Pats case.  The media stories on deflategate any more aren't about how the Patriots cheated.  They are more about how Goodell and the NFL bungled the whole thing.  

This isn't Hollywood where the old saying 'any press is good press' applies.  Does the NFL want to keep getting hammered in the media over deflategate to cover other issues or do they want to lick their wounds and walk away?


September 3rd, 2015 at 11:48 AM ^

wants to bog down the regular season with a court case that has already exposed its initial investigation as limited and a ruling that describes the punishment administered by both judge and executioner, Roger Goodell, as "industrial" magic, the NFL would only be wagging the dog in chase of its tail, which is between its legs right now thinking it could bully a decision on its championship team and quarterback. 

The NFL does itself no favor by trying to impose itself as some kind of authority on the good of the game when it doesn't play the game fairly and administers justice in frontier fashion. And that is exactly why Brady and the Pats prevailed. A four game suspension was ludicrous on its face and without any justification and Judge Berman made that point. 

Look, there is always a legal position to take that can mitigate a failed stake in a judge's ruling  but what do you gain from making that point? 

By seeking to make Brady cause and effect for improper game ball inflation and blaming it mostly on his failure to turn over private information without sculpatory value in a hunt for so-called truth of your own creation, doesn't make the King and his court bigger than the case. Goodell has simply become the Emperor who wears no robes when it comes to punishing people for the sake of punishment. 


September 3rd, 2015 at 11:57 AM ^

Regarding Goodall winning an appeal. The issue isn't so much Goodall's rights to dole out punishment, bu before you can even think of punishing you have to first prove an infraction occured and prove the culpability of the accused. That is a burden that Goodall has never been able to meet and will definitley not be able to meet in the Brady case.


September 3rd, 2015 at 5:02 PM ^

That's not correct, there isn't really a burden of proof for Goodell which is why many are surprised by the judge overturning the suspension. He actually has a lot of authority, and a judge cannot make this decision because he disagrees with Goodell's conclusions (i.e. if the judge just felt that Brady was clearly innocent, the suspension could not be overturned). In order for the suspension to be overturned, the judge had to find that Goodell's process was incorrect--that he broke the rules set forth in the CBA (more or less--it's a little more complicated than that, because precedent counts as well).

A great article posted yesterday that explains this well:

Ali G Bomaye

September 3rd, 2015 at 1:42 PM ^

The NFL is within its rights to file an appeal.

However, they have to consider a few things. First, the season is almost upon us, and Goodell has historically been reluctant to do anything that could detract from the pageantry of the opener. Second, the tide of popular opinion has turned against the NFL as it becomes apparent how minor the cheating was alleged to be, if it even happened. Third, it's not clear whether the NFL would have a chance at winning the appeal, and every time they take a loss it's a big hit to the credibility of the league and Goodell's punishment program.

Goodell bungled this one from the start. It's time to let it go, even if the result isn't what he wanted.


September 4th, 2015 at 9:05 AM ^

Article 46, which was the negotiated part of the CBA

you are discussing, does give the Commisioner the ability to hand out discipline and hear appeals for "conduct detrimental". However -- and this is the point which many people seem to miss -- this does NOT give the Commissioner carte blanche to do whatever he wants outside the bounds of accepted precedent, the other terms of CBA, established caselaw, and due process protections.

Judge Berman himself eviscerated the NFL's "The CBA so haha we win!" argument:

"NFL precedent demonstrates that, in Article 46 arbitration appeals, players must be afforded the opportunity to confront their investigators."

I am a labor law attorney and I can tell you categorically that you should not believe anything you hear from ESPN and other NFL mouthpieces. My colleagues and I have been shaking our heads over the NFL's position for months now.

As for the appeal ... As we all know, anyone who has the money for the appeal fee *can* file an appeal. Chances of success before the 2nd Circuit? Having followed the case, read all the filings and transcripts, and dissected the opinion, I believe Judge Berman wrote a fairly appeal-proof decision. This isn't his first rodeo! However, it is a foolhardy counsel who *guarantees* their client a win.

What the owners want is anyone's guess. A cynic might feel they have reasons for being pleased:

1. Lengthy appeals process depleting the NFLPA's coffers
2. Rescinding the broad powers under Article 46 will force the Union to use up their negotiating 'chits' in upcoming negotiations.
3. No one has been talking about concussions.

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September 3rd, 2015 at 10:36 AM ^

are missing the point.  Yes, my guess is that the reason for reversal was a general due process analysis, but the fact that the Judge even got into the facts of the underlying conduct is surprising.  This decision, if upheld, will essentially invalidate the entire process by which the NFL disciplines players.  It could have effects on the legality of suspensions for other things like domestic violence in the absence of criminal convictions.  It is actually pretty stunning.


September 3rd, 2015 at 10:56 AM ^

From the initial skims of the opinion, it doesn't look like the judge got into the facts of the underlying conduct (other than putting quotation marks around "independent" every time he mentioned the Mills report). The grounds for overturning were three due process claims.


1. The NFL didn't properly inform Brady of the punishment he faced or what he was accused of.

2. The NFL didn't allow Brady's lawyers to question NFL lawyer Jeff Pash at the appeal.

3. The NFL didn't allow Brady's lawyers to examine the evidence against him.


MI Expat NY

September 3rd, 2015 at 11:37 AM ^

It doesn't go that far at all.  What it does is say the NFL can't simply make it up as they go along, expecially when the law of the shop had already been established (like fines for equipment violations).  The decision says that the players must have reasonable notice of consequences for their actions and that if the NFL is going to have an arbitration process, it needs to be fair.  

Also, the domestic abuse issues were handled in the Peterson case, which basiclaly decided that the NFL could have its domestic abuse policy, it just couldn't retroactively punish players based on said policy.  


September 3rd, 2015 at 11:57 AM ^

It could have effects on the legality of suspensions for other things like domestic violence in the absence of criminal convictions.

I'm not at all missing the point, and if the effect that it has is that process afforded to the players prior to the imposition of discipline becomes a fair and transparent one, that's great.  


September 4th, 2015 at 8:50 AM ^

There is a very simple way to discourage players from appealing all disciplinary actions to the courts: No judge would overturn a decision by an impartial outside arbitrator who has afforded the parties due process and a fair hearing. What a novel concept!

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