By Ronald Miller, J.D.
NFL commissioner Roger Goodell properly exercised his broad discretion under a collective bargaining agreement to serve as arbitrator and enter an award confirming a four-game suspension of New England Patriots’ quarterback Tom Brady, ruled a 2-1 Second Circuit. The lower court had vacated the award based on its finding of fundamental unfairness and lack of notice. However, the appeals court found that the commissioner’s procedural rulings were properly grounded in the CBA and did not deprive Brady of fundamental fairness. Judge Katzmann filed a separate dissenting opinion (National Football League Management Council v. National Football League Players Association
, April 25, 2016, Parker, B.).
Upon learning that all of the Patriots’ game balls used during the AFC championship game between the Patriots and the Indianapolis Colts on January 18, 2015, were inflated below the range specified by the NFL’s official playing rules, league officials began an extensive investigation into the team’s use of the seemingly under-inflated balls. After several months, an “independent” investigator (and attorney) concluded that it was “more probable than not that New England Patriots personnel participated in violations of the Playing Rules and were involved in a deliberate effort to circumvent the rules.” The investigator also found that “it is more probable than not that Brady was at least generally aware of the inappropriate activities” of the Patriots’ personnel “involving the release of air from Patriots game balls.”
In a letter dated May 11, 2015, the NFL’s executive VP notified Brady that the commissioner had authorized a four-game suspension, which was based on a finding that he participated in a scheme to deflate footballs used during the championship game to a pressure below the permissible range. Brady requested arbitration. The union challenged the factual conclusions of the investigation and also argued that the commissioner had improperly delegated his authority to discipline players. The commissioner reasoned that his recusal was not warranted because he did not “delegate his disciplinary authority” and did “not have any first-hand knowledge of any of the events at issue.”
On July 28, the commissioner, serving as arbitrator, entered an award confirming the four-game suspension. The parties sought judicial review. The district court vacated the award, reasoning that Brady lacked notice that his conduct was prohibited and punishable by suspension, and that the manner in which the proceedings were conducted deprived him of fundamental fairness. The league appealed.
As an initial matter, the court observed that as arbitrator, the commissioner was authorized to impose discipline for, among other things, “conduct detrimental to the integrity of, or public confidence, in the game of professional football.” Thus, his authority was especially broad. Concluding that the commissioner properly exercised his broad discretion to resolve an intramural controversy between the league and a player, the appeals court reversed the judgment of the district court and remanded with instructions to confirm the award. It rejected the three bases cited by the district court for overturning Brady’s suspension.
On appeal, the union did not contest the factual findings of the commissioner; nor did it contest that the commissioner was entitled, under Article 46 of the CBA, to determine that Brady’s “participation in a scheme to tamper with game balls” was “conduct detrimental” worthy of a four-game suspension.
Lack of adequate notice.
The parties agreed that the “law of the shop” required the league to provide players with advance notice of “prohibited conduct and potential discipline.” The district court identified several grounds for concluding that Brady had no notice that either his conduct was prohibited or that it could serve as a ground for suspension. The union argued that the commissioner was not permitted to impose a four-game suspension under Article 46 because the player policies, which were collected in a handbook and distributed to all players, mandated only a fine for equipment infractions.
Not “equipment infraction.”
However, the appeals court concluded that the equipment provision did not apply and the punishments listed for equipment violations were minimum ones that did not foreclose suspensions. The court pointed out that despite an extensive list of uniform and equipment violations, nothing in the player policies mentioned the words “tampering,” “ball,” or “deflation.” On the other hand, Article 46 gave the commissioner broad authority to deal with conduct he believed might undermine the integrity of the game.
The district court also concluded that the award was invalid because “[n]o NFL policy or precedent provided notice that a player could be subject to discipline for general awareness of another person’s alleged misconduct.” However, the appeals court found that the award clearly confirmed Brady’s discipline was not because of a general awareness of misconduct on the part of others, but because Brady both “participated in a scheme to tamper with game balls” and “willfully obstructed the investigation by . . . arranging for destruction of his cellphone.” Thus, the appeals court found that the commissioner was within his discretion to conclude that Brady had “participated in a scheme to tamper with game balls.”
Judge Katzmann argued that when the Commissioner, acting in his capacity as an arbitrator, changed the factual basis for the disciplinary action after the appeal hearing concluded, he undermined the fair notice for which the players association bargained, deprived the player of an opportunity to confront the case against him, and, exceeded his limited authority under the CBA to decide “appeals” of disciplinary decisions. The dissent was further troubled by the commissioner’s decision to uphold the four-game suspension after failing to even consider an alternative penalty. Thus, the dissent concluded that the commissioner’s decision reflected “his own brand of industrial justice.” The dissent argued that Article 46 of the CBA was designed to provide a check against the commissioner’s unfettered authority to impose discipline for “conduct detrimental,” but his murky explanation undercut the protections for which the NFLPA bargained.