Judge Overturns Tom Brady Suspension
Ultimately it came down to this -- federal district court Judge Richard Berman determined NFL commissioner Roger Goodell did not have the authority to suspend Tom Brady four games for "more likely than not" knowing about the deflation of footballs in the AFC title game.
Judge Berman cited three reasons to vacate the NFL's suspension of Tom Brady: a. inadequate notice of the potential for a four game suspension in a situation such as this b. denial of Brady's team the ability to cross-examine NFL employee Jeff Pash, the co-author of the Wells report and c. denial of equal access to Brady's legal team of the NFL's investigative files.
But really this case is about inadequate notice and I'm going to cite several pertinent parts of this decision below and explain why I believe they are particularly relevant. All sections of the opinion that I'm citing will be in bold. You can read the opinion for yourself here.
The judge began his ruling by citing a telling quote from Bounty-Gate.
"In the Bounty-Gate case, former NFL Commissioner Paul J. Tagliabue, appointed as arbitrator by Commissioner Goodell after Goodell had recused himself, vacated the suspension of a player who had allegedly obstructed the League's investigation into the New Orleans Saints' bounty program (involving alleged monetary incentives to injure opposing players). Tagliabue stated: "There is no evidence of a record of past suspensions based purely on obstructing a League investigation. In my forty years of association with the NFL, I am aware of many instances of denials in disciplinary proceedings that proved to be false, but I cannot recall any suspension for such fabrication. There is no evidence of a record of past suspensions based purely on obstructing a League investigation."
That language would come back to haunt Roger Goodell in the most important part of the judge's decision, his analysis of whether or not Tom Brady had notice that he could be suspended for ball deflation.
Here's the most important paragraph of Judge Berman's decision:
"The Court finds that Brady had no notice that he could receive a four-game suspension for general awareness of ball deflation by others or participation in any scheme to deflate footballs, and non-cooperation with the ensuing Investigation. Brady also had no notice that his discipline would be the equivalent of the discipline imposed upon a player who used performance enhancing drugs."
In essence, the court found that the CBA did not grant Roger Goodell the power to suspend a player for tampering with footballs and not cooperating with the ensuing investigation. Moreover, the court also said that Brady had no notice that he might face suspension for any such issues with the equipment or his failure to cooperate fully with the investigation.
"During the August 19, 2015 oral argument, it became apparent that no specific determination was made either in the Vincent's Disciplinary Decision Letter or the Goodell Award as to what portion of Brady's discipline was attributable to alleged ball tampering and what discipline was attributable to non-cooperation (and, for that matter, what discipline was attributable to the destruction of Brady's phone):
Q :
"So which of the four games is attributable to ball tampering, and which is attributable to failure to cooperate?"
A (Pash):
"Well, the Award doesn't specify, and I don't believe there's any requirement in the CBA to break it down that way. I think the
Commissioner makes a judgment, and he says this in the Award, he says taking the record as a whole, considering all of the factors, he determined that a four-game suspension was the appropriate sanction."
So how did Roger Goodell arrive at a four game suspension? The commssioner explained:
"he closest parallel of which I am aware is the collectively bargained discipline imposed for a first violation of the policy governing performance enhancing drug ...
In our most recent Collective Bargaining Agreement, the parties (a) agreed to continue that level of discipline for a first violation and (b) further agreed that a player found to have used both a performance enhancing drug and a masking agent would receive a six-game suspension. The four-game suspension imposed on Mr. Brady is fully consistent with, if not more lenient than, the discipline ordinarily imposed for the most comparable effort by a player to secure an improper competitive advantage and (by using a masking agent) to cover up the underlying violation."
The problem from the court's perspective is that players have advance notice of the drug policy in their CBA and understand they face suspension for violating the league's drug prohibitions. But what notice did Brady have that tampering with footballs and refusing to cooperate in an investigation could lead to a four game suspension? There was no specific provision that suggested a suspension was possible for violating this provision.
What about Brady's misconduct here, his general awareness that the balls were deflated? The court analyzed that as well:
"With respect to "general awareness" of others' misconduct- which is the principal finding in both the Wells Report and the Vincent Letter- Brady had no notice that such conduct was prohibited, or any reasonable certainty of potential discipline stemming from such conduct. The Court concludes that, as a matter of law, no NFL policy or precedent notifies players that they may be disciplined (much less suspended) for general awareness of misconduct by others. And, it does not appear that the NFL has ever, prior to this case, sought to punish players for such an alleged violation."
Indeed, the court finds that the punishment for tampering with footballs was, at most, a fine of $5,512.
"The Players Association argues that"( u ]nder the Player Policies, Brady had notice only of fines- not suspensions- for player equipment violations designed to gain a competitive advantage." With respect to "Other Uniform/Equipment Violations," and as noted the Player Policies state in relevant part, the following:
"League discipline may also be imposed on players whose equipment, uniform, or On Field violations are detected during postgame review of video, who repeat violations on the same game day after having been corrected earlier, or who participate in the game despite not having corrected a violation when instructed to do so. First offenses will result in fines."
Under the corresponding "2014 Schedule of Fines," a first offense of"other uniform/equipment violations" results in a fine of $5,512."
Under this court's ruling of Goodell's power, all the commissioner would have the right to do is fine Tom Brady $5,512.
This leads to the court's conclusion that:
"Brady was on notice that equipment violations under the Player Policies could result in fines. He had no legal notice of discipline under the Competitive Integrity Policy, which is incorporated into the Game Operations Manual and distributed solely to- and, therefore, provides notice to- "Chief Executives, Club Presidents, General Managers, and Head Coaches," and not to players."
This, in essence, is the crux of the court's decision: Because Brady had no notice that he could be suspended for tampering with footballs and because the commissioner had no specific authority to suspend a player for tampering with balls or failing to cooperate with an investigation, the suspension is vacated.
Now, my thoughts:
1. The court read the commissioner's powers very narrowly.
The NFL wants to argue that Goodell has the ability to suspend players not just for personal conduct violations, drug policy violations, and domestic assault -- i.e. those prohibited player actions specifically set out in the CBA -- but also for "conduct detrimental," to the league.
The court is insisting that the commissioner is bound in his player discipline by the specific provisions of the CBA. That is, the court wants all discipline enumerated. Since there was no provision of the CBA specifically governing this situation -- ball deflation and imputed player knowledge of the issue along with a failure to cooperate with an investigation -- then the commissioner's four game suspension is invalid.
2. What authority does Roger Goodell have to suspend any players for "conduct detrimental" to the league absent specific penalty provisions?
This is the most important question I have after reading this opinion. The answer would appear to be, virtually none. Goodell can suspend players for agreed upon issues in the CBS, but not for those issues which fall outside the specific boundaries of these instances.
It's hard to foresee every possible issue that a commissioner might face. That's why catch-all provisions like "conduct detrimental" are frequently included in the commissioner's powers, to allow him to govern issues that aren't foreseen.
Did anyone ever think that the inflation level of a ball would become a major issue? Of course not. So particular provisions weren't included governing that instance. As a result, Brady dodges punishment for them.
In fact, under the judge's ruling here, Brady never even had to respond to NFL questions about ball deflation. Even if Brady was 100% guilty of tampering with the balls, under this ruling the most the commissioner could fine him was just over five thousand dollars. This, my friends, is an incredibly narrow reading of the commissioner's power.
3. Let's assume Brady is 100% guilty: does Goodell have the power to suspend Brady in this situation?
This court says no.
Another court may well disagree. It all depends on how broadly you want to construe the commissioner's power. Can't you reasonably argue that, unlike, say, domestic abuse or off-field player misconduct that Brady's knowledge of ball deflation could give him a competitive on-field advantage? And shouldn't a commissioner have a right, whether explicitly stated or not, to suspend a player if he believes that player gained a competitive advantage on the field by violating a rule?
Since all court cases build on precedents, let's think situationally, what if one team used jerseys and pants all season that were covered in a substance that made them artificially slick? That is, the players were much more difficult to tackle based on the substance that covered their jerseys and pants. And players actually put the substance on their own jerseys and pants before every game and that team went on to win the Super Bowl. And the NFL later tested the jerseys and pants and found that substance on the players jerseys and pants and also incontrovertibly proved that the players gained a huge competitive advantage.
By this court's ruling the most a player could be disciplined for this act would be a fine of $5,512. Oh, and no players would have to cooperate in the league's investigation at all.
4. The NFL and Roger Goodell made a legal mistake in referencing how he arrived at a four game suspension.
The league should have stuck to the argument that the suspension was based on conduct detrimental to the league. Instead, Goodell analogized Brady's four game suspension to the NFL's drug policy, which is enumerated in great detail in the collective bargaining agreement.
I think the court errs in this part of the opinion in using Goodell's analogy as a specific template for how he arrived at the suspension, but the NFL would have been better served to argue that Goodell's suspension was based on conduct detrimental to the league, that is, that he believes Brady received a competitive advantage.
As is, the court was able to demolish the NFL's reliance on the drug policy, since the penalties are specifically enumerated for drug violations.
5. Why would an NFL player ever cooperate with an NFL investigation ever again?
This is the craziest aspect of this ruling. As written, the court basically says there's no penalty for failure to cooperate with a league investigation. So if you aren't facing a league penalty that is specifically enumerated in the CBA, why would you ever respond to the league's questions?
Under this ruling, Brady had no obligation to ever answer the NFL's phone calls. He had no obligation to respond to the league at all. That seems absurd on its face and will likely be remedied going forward. Either the appeals court will disagree with this ruling or the NFL will attempt to set in place a penalty for failure to cooperate in investigations.
6. So what's next?
The NFL will appeal to the Second Circuit -- the next level up in federal court, the Supreme Court would be the final court and would be the next level after the Second Circuit -- and likely seek a stay of Judge Berman's ruling. A stay would be granted if a court believed the NFL had a substantial likelihood of success on the merits and would be harmed if the ruling was allowed to remain in force -- i.e. the NFL would be harmed if Brady was allowed to play in week one.
If a stay of Judge Berman's order was granted then the NFL's suspension would remain in effect pending a ruling by the Second Circuit.
7. What risk do Tom Brady and the Patriots face here, didn't they win?
If the team lost at the Second Circuit -- that is Judge Berman's ruling was overturned -- Brady's suspension could be reinstated later in the season. Could that happen? Sure. Courts overturn district court rulings all the time. Is it likely, hell, that depends on the judges sitting en banc on the Second Circuit.
The worst case scenario for Brady and the Patriots would be the Second Circuit reinstituting the suspension, declining to stay the suspension pending an appeal, and Brady being forced to sit for late season games, potentially including a playoff game or games.
8. When will this all be over?
Two ways: 1. When, or if, the Supreme Court declines to hear this case or agrees to hear this case and issues a ruling. or 2. If both parties agreed to a settlement. Given that neither party has been willing to settle this case thus far, that seems unlikely.
So whatever ruling the Second Circuit decides upon would be appealable to the Supreme Court. Until the Supreme Court declines to hear the Second Circuit's appeal or makes its own ruling, we won't know for sure whether Tom Brady's suspension will stand.