Why did Tom Brady win his case against Roger Goodell? I and several other alleged experts predicted that he would lose, so we were wrong. At least, so far.
What happened? Some observers were unimpressed with U.S. District Court Judge Richard Berman’s analysis. Others found Goodell’s handling of the case sloppy in places. Although I don’t fully reject either of these points, I have another theory: The NFL’s over-reliance on the imperfect analogy between Goodell’s disciplinary powers and a neutral arbitration led Berman to err.
As I re-read the Brady material, and to a lesser degree Adrian Peterson’s file, I was struck by the differences in language and attitude between these cases and prior court challenges to sports commissioners’ actions, almost all unsuccessful. The word “arbitration” appears only infrequently in the earlier cases but appears throughout Brady and Peterson — and that word has come back to haunt Goodell.
Let’s start with some basics. The NFL’s constitution permits the commissioner to discipline owners, players and other personnel for “conduct detrimental to the welfare of the league.” That’s how Goodell punished the Patriots in Deflategate, and parallel provisions allowed the commissioner of baseball to punish Ted Turner and Pete Rose, and allowed Adam Silver to suspend Donald Sterling. All sports commissioners have similar contractual powers.
Moreover, the NFL collective-bargaining agreement does not cut back this power. Although the CBA requires neutral arbitration of some types of cases (e.g., team discipline, suspensions for unnecessary roughness), it does not do so for cases like Brady’s. CBA Article 46 makes clear that, when the charge involves “conduct detrimental to the integrity of” football, the commissioner gets to decide the case and any appeal. That’s the contract the union signed in 2011.
 |
The NFL and Roger Goodell appealed a federal judge’s ruling lifting Tom Brady’s suspension.
Photo by: GETTY IMAGES (2)
|
History tells us that when the commissioner has the final say under the contracts, he’s very tough to beat in court. When Turner and fellow owner Charlie Finley challenged baseball Commissioner Bowie Kuhn on two separate issues in the 1970s, the courts viewed the cases as contract disputes, with the owners able to win only if they showed that the commissioner had no authority to do what he did. Kuhn won on almost every point.
Indeed, in Finley, the appellate court said, “While it is true that professional baseball selected as its first Commissioner a federal judge [Kenesaw Mountain Landis], it intended only him and not the judiciary as a whole to be its umpire and governor.” The court also deferred to Kuhn’s resolution of a novel issue, saying that “standards such as the best interests of the game … are not necessarily familiar to courts and obviously require some expertise.” You will not find such deferential language in the Brady or Peterson decisions.
Over the last several decades, sports personnel have not fared any better than Finley or Turner in challenging commissioners in court. Rose sued but gave up. Sterling sued Silver but got nowhere. And under the CBA, Brady has no more rights than any of these folks.
But in Brady and Peterson, when the players — lacking any right to neutral arbitration — asked the courts to vacate what they called the “arbitration,” the NFL, apparently happy to accept the deference accorded to arbitrators, did not dispute or clarify the term. The commissioner is represented by fine lawyers, but this decision seemed to create a problem with Berman.
His opinion reflects concern that Brady did not get a neutral enough arbitration. And that point is not so far-fetched given that this was not really an arbitration as that term is normally used, and the relevant contracts explicitly do not require a neutral arbiter.
Arbitration involves a dispute between A and B, decided by C. C is ordinarily a neutral party with no prior involvement in the controversy, but in Brady, there is no third party — only the NFL and Brady. Goodell wasn’t exactly arbitrating between Brady and another; he was disciplining Brady, as permitted by the relevant contracts. He was, by contract, the investigator and sole judge. Thus, he was as all-powerful as Kuhn with Turner and Finley, Bart Giamatti with Rose, and Silver with Sterling.
Berman’s misunderstanding of the contractual nature of Goodell’s role is clear, as he questioned Goodell’s seemingly non-neutral conduct at every turn. He questioned whether investigator Ted Wells was “independent.” He was concerned that Wells had consulted with the NFL’s lawyer and that Goodell had prejudged the case by praising Wells’ investigation. He questioned how Wells’ law firm could also act as NFL counsel.
But these concerns vanish if one recognizes that the NFL constitution and CBA make Goodell both investigator and judge. He can hire whomever he wishes to help with the investigation, and that person can surely talk with the league’s lawyer. The commissioner is not some neutral outsider brought in to decide a case; he is the CEO of football, tasked with investigating sensitive controversies. Although his authority is in some ways analagous to those of an outside arbitrator, the analogy is not perfect, as part of his job is to lead the NFL through controversies, commenting as appropriate and acting as decision-maker when necessary.
I recognize that Berman found other faults with Goodell’s ruling, but his entire opinion is laced with this concern that the arbitrator wasn’t neutral, and not entitled to deference. He did not account for, or give deference to, the commissioner’s unique role as CEO, investigator and judge. Otherwise, how can one explain his ruling that the commissioner of football is not entitled to conclude that attempted cheating is worthy of the same punishment as steroid usage absent “scientific, empirical or historical evidence”? Not much deference there.
The 2nd Circuit may see through all of this and rule for Goodell, but maybe, on appeal, the NFL could enhance its chances by emphasizing that the commissioner is not an ordinary, plain vanilla arbitrator, but rather a special type of investigator/decision-maker, with contractual authority to act exactly as Goodell did. Whether one calls him a special type of arbitrator or simply a sports commissioner authorized by contract to act as he did, Finley and the other cases teach that he is entitled to great deference and ought not be second-guessed if he acted within his authority. He didn’t get that deference in the trial court.
Len Simon (LenS@rgrdlaw.com) is a litigator and adjunct law professor. He has represented sports leagues, teams and athletes since the 1970s and has taught sports and the law at the University of San Diego for more than a decade. He (with others) represented MLB in the Ted Turner case referred to above. He previously wrote about the Brady case for SportsBusiness Journal in the July 13-19, 2015, issue.
