While waiting last week for NFL Commissioner Roger Goodell to decide on Tom Brady’s appeal of his four-game suspension, I started thinking about what is likely to be the next appeal — to the courts. While Goodell could overturn Brady’s suspension, I see that as being unlikely. Whether he leaves it at four games or reduces it somewhat, Brady is likely to go court, as the players union and many of the same lawyers recently did for Adrian Peterson.
Can Brady win? Predicting court rulings is always uncertain, but Brady will have an uphill battle. If he doesn’t like the fact that Goodell serves as prosecutor, judge, jury and executioner, he should reread the NFL collective-bargaining agreement and review what happened in a 2011 case called Tom Brady v. NFL. Yes, 2011; that’s not a typo. Brady really did sue the NFL four years ago, and the resolution of Brady/2011 really does hurt Brady/2015.
Let’s start with some history. Back in the day, sports commissioners were all-powerful. All the leagues’ rules gave commissioners authority to determine what was in the best interests of the sport, and they could suspend players and other personnel without arbitrators or judges looking over their shoulders. No arbitrator reviewed Commissioner Kennesaw Mountain Landis’ lifetime ban on Joe Jackson, nor was one available for Joe Namath or Pete Rose when they got in trouble. Simply put, if it looked like you might have misbehaved, the commissioner investigated, decided guilt or innocence, and chose the punishment. His decision was essentially final and unreviewable.
I say “essentially” because people sometimes have gone to court against a commissioner, and a few have won. But the victories have come only when (a) the commissioner violated the sport’s written internal rules (the Braves and Cubs beat Bowie Kuhn this way), or (b) the commissioner violated some federal or state law (like the antitrust laws). Brady, however, doesn’t have much of a case that Goodell violated either NFL rules or any law. He just says he’s innocent, or the punishment doesn’t fit the crime, and that’s exactly where Goodell is at his most powerful. (He does say that Troy Vincent shouldn’t have decided the punishment in the first instance, but Goodell says that he decided it.)
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Patriots QB Jimmy Garoppolo (right) would start in place of Brady if his suspension is upheld.
Photo by: GETTY IMAGES
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But, you may say, the Shoeless Joe and Joe Willie cases happened way back then, and this is now. We have powerful players unions that have negotiated valuable rights for their players. Even Alex Rodriguez got a neutral arbitrator to review Bud Selig, so why shouldn’t Brady get the same?
The answer lies in the NFL CBA. Although each union has negotiated neutral arbitration rights for some commissioner decisions, none has obtained that right across the board. The leagues negotiate hard to protect the commissioners’ power on some core issues, and compromises are negotiated. Thus, although the NFL CBA permits players to get neutral arbitrators for many things — discipline imposed by teams, punishment for unnecessary roughness — it explicitly permits the commissioner to make final decisions on discipline for “conduct detrimental to the integrity of or public confidence in the game.” Deflategate is such a case.
That leads us back to 2011 and Brady v. NFL. That was the last time the NFL Players Association negotiated a CBA. You may remember that the negotiations were long and ugly, there was a lockout, and the players tried to increase their leverage by suing under the antitrust laws, with none other than Brady as the lead plaintiff. After some posturing and litigating, a deal was struck, and a new CBA was signed — which got the players changes in salary cap rules, limits on practices, and the like, but confirmed the commissioner’s all-powerful status when it comes to “the integrity of the game.”
But, you say, what about Peterson, Ray Rice and Bountygate? Those players beat Goodell. None of those cases is like this one. In Bountygate and with Rice, Goodell voluntarily designated someone else to decide the final appeal. In Rice, there was the added factor that Goodell appeared to be punishing Rice twice for the same thing (once before he saw the infamous video, once after). Goodell’s designees ruled in favor of the Bountygate defendants and Rice. All that proves is that Goodell could have let someone else decide Brady’s case, but he didn’t. And that is clearly his call.
Peterson’s case is slightly more relevant, as a court overturned Goodell, finding that he violated NFL rules by applying the new post-Rice misconduct standards to Peterson’s prior actions, which is called ex post facto, or changing the rules in the middle of the game. But it’s hard to see what rule Goodell has changed here. The Brady case is without precedent, much like when Kuhn prohibited Charley Finley from selling Joe Rudi, Rollie Fingers and Vida Blue. No commissioner had done that before, but when Finley challenged the decision in court, he lost. The judge thought that was why we have sports commissioners, to decide hard or unprecedented cases.
So Brady should cross his fingers and hope Goodell cuts his suspension in half. If the commissioner rules against Brady, his ruling is very likely untouchable in court as being part of a system blessed by the last CBA and reconfirmed only four years ago by the lawyers and a labor union representing one Tom Brady.
Len Simon is a lawyer and a law professor at the University of San Diego. He has taught sports and the law for more than a decade and has represented sports leagues, teams, professional and amateur athletes, and agents in a variety of matters since the 1970s.
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