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The Last Time You'll See the Word "Deflategate." I Promise.

Free Tom Brady

What the well-dressed couple in Boston is was wearing.

I should disclose at the outset that I think the whole Deflategate scandal was and is a tempest in a teapot. I've thought so ever since the allegation of underinflated footballs was first reported.

Not surprisingly, this is a common sentiment in Boston where I live, but I don't think I'd feel differently if I lived in Indianapolis. I don't even think I'd feel differently if I were a Patriots hater (a group whose number evidently swells with each passing day).

All of which is to say that I found in Deflategate nothing worth writing about.

I still don't, except to the extent that the Deflategate controversy ultimately conferred jurisdiction upon Judge Richard Berman of the U.S. District Court for the Southern District of New York. In my opinion, it's the Court's decison in this matter, and especially its findings with respect to Roger Goodell's exercise of discretion and authority as NFL Commissioner, that merit discussion.

With respect to Deflategate, even casual football fans know the underlying facts and allegations, so in the interest of brevity I'll dispense with a formal recap and simply assume the reader's general familiarity. I'll also limit my discussion of the underlying controversy to those items that are material to the Court's September 3, 2015 ruling.

Procedurally, this was an appeal of an arbitration conducted by NFL Commissioner Roger Goodell sitting as Arbitrator.

The arbitration arose because Goodell as Commissioner had levied a four-game suspension on Tom Brady.

Based on events that Goodell found to have occurred during the 2014 AFC Championship Game between the Patriots and Colts, Goodell levied separate sanctions against team owner Bob Kraft and the Patriots organization, and its quarterback Tom Brady. The team was fined $1 million and ordered to forfeit its first round draft pick in the 2016 draft, as well as its fourth round pick in 2017. Brady was ordered to serve a four-game suspension without pay, beginning with the first game of the 2015 season.

Thereafter, Arbitrator Roger Goodell affirmed the sanctions that were imposed by Commissioner Roger Goodell. Ever get a traffic ticket in Waskom? If so, you'll understand the parallel.

As Arbitrator, Goodell found that Brady was "generally aware" of the Patriots equipment managers' deliberate underinflation of game balls. At the same time, the Arbitrator's opinion strongly suggests that Goodell was ultimately more perturbed by the fact that Brady didn't voluntarily cooperate with the NFL's investigation. As such, Goodell deemed Brady's behavior in totality "conduct detrimental" to the NFL and pro football.

Brady appealed the Arbitrator's decision (through the NFLPA, the players' union), but the Patriots decided to accept the team sanctions that were levied and upheld at arbitration.

The Best Interests of Football

If all this sounds vaguely familiar, then you probably recognize the name Bowie Kuhn without having to Google it.

Owing to legendary Commissioner of Major League Baseball Kenesaw Mountain Landis, the baseball Commissioner has near-unfettered authority to act unilaterally "in the best interests of baseball." As Commissioner during the 1970s, Kuhn invoked this authority liberally - for example, to prevent Oakland As owner Charlie Finley from liquidating his best and highest-paid players.*

*In addition, many fans don't realize that Kuhn invoked "the best interests of baseball" to ban Willie Mays and Mickey Mantle from baseball for having promoted casinos. Both Mays and Mantle were later reinstated by Kuhn's successor, Peter Ueberroth. Unlike Kuhn, Bart Giamatti as Commissioner deliberately refrained from invoking "the best interests of baseball" when he instituted a lifetime ban on Pete Rose. A former Yale law professor, Giamatti was concerned that the MLB Commissioner's overuse and overreliance on "the best interests of baseball" might imperil MLB's antitrust exemption.

Commissioners of other professional sports leagues enjoy extensive unilateral authority, but in no case is their discretion as intentionally and expressly sweeping as "the best interests of baseball."

You can't say Roger Goodell didn't try.

The Decision

Was there ever any doubt that this guy would come out smelling like a rose?

After briefing and oral argument, Judge Berman on September 3, 2015 issued a ruling that vacated the four game suspension imposed on Patriots quarterback Tom Brady by Roger Goodell as NFL Commissioner, and affirmed by Roger Goodell sitting as Arbitrator.** Prior to the Court's ruling, the parties (the NFL Management Counsel and the NFLPA, respectively) had apparently tried in good faith to reach a compromise but were unable to do so.

**For those readers who subscribe to the critical legal studies theory of adjudication, Judge Berman is almost certainly a Democrat. A Clinton appointee to the federal bench, Judge Berman was at one time a staffer for Senator Jacob Javits (D.N.Y.).

Without expressly saying so, the Court obviously rejected any notion that the NFL Commissioner's inherent and/or delegated discretion exempts the Commissioner's actions from the strictures of federal labor law.

Indeed, the Court's opinion is a very straightforward application of well-established labor law precedent to what was anything but an impartial hearing and adjudication. The NFL basically conceded as much.

Under federal labor law, whatever powers and discretion may be vested in the arbitrator, any award must be supported by principles of fundamental fairness and due process. Among other things, evidence of "evident partiality" by the arbitrator permits a reviewing court to vacate the arbitrator's award.

Apart from Goodell's obvious interest in the outcome, the Court based its award on three things: (1) the lack of notice to Tom Brady that conduct detrimental to the league would subject the violator to suspension; (2) Goodell's refusal to allow Brady to cross-examine one of the NFL's two lead investigators; and (3) Goodell's refusal to allow Brady to conduct document discovery.

The first of these is the most noteworthy. Labor law dictates that the rights and responsibilities of management and labor are governed not only by the express terms of a collective bargaining agreement (CBA), but also the parties' historical dealings and past practices. The latter are sometimes referred to as "implied terms" or "the law of the shop."

The Court found that by past practice, if not express CBA language, NFL players are entitled to receive advance notice of prohibited conduct and potential discipline. Indeed, this is characteristic of fundamentally fair procedure in any forum.

In a somewhat tortured attempt to satisfy the advance notice requirement, the NFL argued that Goodell's finding that Brady's use of underinflated footballs was an impermissible attempt to gain competitive advantage, and as such, was analogous to a player's use of performance-enhancing drugs. Since the penalties for using steroids or human growth hormone were fully disclosed and well-known, the NFL contended that this was effective notice with respect to available sanctions for any prohibited attempt to gain competitive advantage.

The Court wasted little time in ruling that using steroids isn't analogous to any other form of player misconduct, especially and including what Brady was found to have done.

Apart from the obvious inapposite comparison, the NFL was actually hoist by its own petard. Goodell never made any finding of fact - either as Commissioner or Arbitrator - that Brady himself underinflated the game balls or gave any such instruction to the team's equipment managers. Goodell merely found that Brady was "generally aware" of such activity. Consequently, in exercising caution not to make findings unsupported by hard evidence, Goodell failed to establish a sufficient factual basis for the sanction that he ultimately imposed.

Some have accused Goodell of letting ego drive his decision to act as judge, jury and executioner with respect to Deflategate. That's certainly plausible, but I don't think you can rule out the possibility that Goodell sincerely believed the NFL Commissioner should be empowered to act unilaterally to protect the integrity of pro football, even if the tangible evidence amounts to nothing more than "I've looked at this, and I smell a rat."

More globally, the Court's ruling is entirely consistent with the popular sentiment that professional sports is just another business, like manufacturing widgets or mowing lawns.


Be excellent to each other.

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