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NFL v. Brady – Decision Not Surprising

On April 25, 2016 an important decision for the sports world came down from the U.S. 2nd Circuit Court of Appeals involving Tom Brady. Being a sports fan and a tax lawyer, the opinion sparked my interest. Challenging the National Football League seemed to mirror the challenges we launch against government agencies every day. While the case is not exactly analogous for a few reasons, it was not that dissimilar for a taxpayer’s challenge to a government agency.

From a procedural perspective, the case stems from the infamous “deflate gate” scandal of the 2015 AFC Championship Game. During the game Tom Brady, of the four-time Super Bowl champion New England Patriots, allegedly instructed personnel to deflate the footballs below the legal pressure level in order to enhance his ability to grip the football. Specifically, after the game in question, the NFL officials determined that all 11 of the Patriots balls were inflated below the allowable level of 12.5 PSI, while none of the Colts balls were below.

Following the allegations, the NFL launched an extensive investigation to determine whether the Patriots engaged in wrongdoing. The investigation resulted in a 139-page report, which included some interesting blurbs about Patriot’s equipment personnel being referred to as the “deflator.” There was also testimony in which Patriot’s officials received money, “new kicks,” and Brady memorabilia in exchange for deflating the balls. The NFL seemed to take exception to Brady’s lack of cooperation during the investigation, Brady’s sudden extensive communication with equipment personnel following the incident, and a destruction of a cellphone.

The report resulted in a suspension of Brady by the NFL pursuant to Article 46 of the Collective Bargaining Agreement (“CBA”) for engaging in “conduct detrimental to the integrity of . . . the game.” Brady appealed the NFL’s suspension to a special hearing officer, who also happens to be the commissioner of the NFL, Roger Goodell. The Player’s Association attempted to challenge the findings of the Wells’ report, to recuse the Commissioner, to compel NFL executives to testify, and to Compel investigation notes. Goodell acting as judge, jury, and executioner denied the challenges and had a 10-hour hearing. About 45 days later, on July 28, 2015, Goodell issued a final ruling sustaining the 4-game suspension. The Commissioner wrote:

(1) Mr. Brady participated in a scheme to tamper with the game balls after they had been approved by the game officials for use in the AFC Championship Game and
(2) Mr. Brady willfully obstructed the investigation by, among other things, affirmatively arranging for the destruction of his cellphone knowing that it contained potentially relevant information that had been requested by the investigators.

Pursuant to U.S. Law, the minimum standards of a CBA are governed by the Labor Management Relations Act (“LMRA”). The LMRA required that the league’s decision be affirmed by a court, so the case went to federal district court for confirmation. Ultimately, the federal court denied to confirm the league’s decision. Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 125 F. Supp. 3d 449 (S.D.N.Y. 2015) (Berman, J.). The court concluded that Brady lacked notice that he could be suspended for his actions and the NFL denied Brady fairness for excluding testimony.

The NFL was then forced to appeal Judge Berman’s lower court decision to the 2nd Circuit Court of Appeals. The Second Circuit Court of Appeals started its analysis by essentially saying that collective bargaining agreements are a matter of private parties and the court has a very limited ability to review an arbitrator’s decision. Technically, the court is limited to ensure Goodell “even arguably construe[ed] or appl[ied] the contract and act[ed] within the scope of his authority” and did not “ignore the plain language of the contract.”

The in depth discussion of about 30 pages looked at whether Goodell followed the CBA at all. Specifically, Article 46 was at the center of the analysis and allowed the commissioner to take disciplinary action against a player who he “reasonably judges” to participate in “conduct detrimental to the integrity” of the NFL. That provision clearly gave the Commissioner broad authority to suspend Tom Brady.

The rest of the dog and pony show was just that. The NFLPA argued that only a fine was warranted under Article 46 for a uniform or equipment infraction but the section does not discuss ball tampering as equipment tampering. The NFLPA also took exception that Goodell analogized Brady’s behavior with those that use steroids. But, again, the Court gave significant respect to the Commissioner’s decision within his area of expertise. In short, Commissioner Goodell did nothing that violated his authority under the CBA and nothing violative of the LMRA. Whether the court agreed or disagreed with the CBA was not for the court to decide, nor was it the court’s role to determine whether Brady was guilty or innocent of deflating the footballs.

It is somewhat comical that this case took center stage in a United States Court of Appeals. Unfortunately for Patriots fans, it seems the court got it right. The NFL and the NFLPA contracted to allow the commissioner to sit as judge, jury, and execution in these types of disputes. The CBA gave the Commissioner a wide range of latitude to determine what “conduct detrimental” means and it seems like deflating a football would fit within the range of that latitude. While many sport’s commentators believe this case will get appealed up to the Supreme Court of the United States, there does not seem like much to be appealed or to waste any more time and money of anyone involved.

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