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Tom Brady’s deflategate suspension is back on after the Second Circuit Federal Appeals Court reversed the district court ruling that Brady’s suspension was without merit under the NFL’s collective bargaining agreement. Essentially the second circuit found that Roger Goodell’s Tom Brady suspension was within the power granted to him under the NFL’s collective bargaining agreement.
The court’s ruling was as follows:
“We hold that the Commissioner properly exercised his broad discretion under the collective bargaining agreement and that his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness. Accordingly, we REVERSE the judgment of the district court and REMAND with instructions to confirm the award.”
In essence the court doesn’t need to determine whether Brady did or did not cheat, they just have to determine whether or not Roger Goodell had the authority to determine that Brady did cheat. And the court, in so deciding, unlike the district court, read the commissioner’s powers broadly.
Here’s the court’s explanation of Goodell’s powers:
“Here, that authority was especially broad. 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.” In their collective bargaining agreement, the players and the League mutually decided many years ago that the Commissioner should investigate possible rule violations, should impose appropriate sanctions, and may preside at arbitrations challenging his discipline. Although this tripartite regime may appear somewhat unorthodox, it is the regime bargained for and agreed upon by the parties, which we can only presume they determined was mutually satisfactory.
Given this substantial deference, we conclude that this case is not an exceptional one that warrants vacatur. Our review of the record yields the firm conclusion that the Commissioner properly exercised his broad discretion to resolve an intramural controversy between the League and a player. Accordingly, we REVERSE the judgment of the district court and REMAND with instructions to confirm the award.”
If you read my analysis of the district court opinion, that judge read Roger Goodell’s power narrowly. Which was why I predicted the appeals court would overturn his ruling.
Here’s what I wrote back in September reacting to the district court ruling:
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 the district court opinion. The answer would appear to be, virtually none. Goodell can suspend players for agreed upon issues in the CBA, 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.”
Basically, the second circuit agreed with me, the commissioner has the authority to discipline even absent specifically enumerated authority to discipline for ball deflation.
So what happens now?
1. The four game suspension is back on.
Brady has two options. He can appeal and seek a stay of the second circuit’s opinion or he can serve the four game suspension to begin this season.
If he serves the suspension, the case is over. If he appeals then…
2. What would a Brady appeal look like?
If he appeals, he has two options, he can appeal to the entire Second Circuit since only three judges heard it as opposed to the entire Second Circuit. Those judges weren’t unanimous either, they ruled 2-1 in favor of the NFL and against Brady. If Brady appeals to the full Second Circuit, he would be seeking a reversal of the decision and an affirmation of the original district court decision.
The Second Circuit is considered to be a consevative court, that is, its justices are more likely to side with big business than not. Brady’s lawyers will have a decent sense for what likelihood of success they have at the full Second Circuit and also whether they drew a particularly conservative trio to hear this decision.
At a minimum, Brady could probably get a stay and gamble this stay would last throughout the 2016 season. But that appeal comes with some risk. What if the full Second Circuit rejects Brady as well and reinstates the punishment just as the playoffs begin? Uh oh.
Instead of appealing to the full Second Circuit Brady can also appeal to the Supreme Court, requesting they agree to hear the case and reverse the Second Circuit’s ruling.
3. It’s unlikely, however, that the Supreme Court would hear the case.
First, because the Supreme Court rejects the vast majority of all cases appealed to it and second because the court would have to believe that the Second Circuit ruling was clearly in error or represented a substantial legal issue in the country. While this case is receiving a great deal of media attention, it isn’t a major legal controversy.
So the only way this case is granted cert by the Supreme Court is if five justices disagree with the ruling of the Second Circuit.
Furthermore, given the fact that there are just eight justices currently serving — Justice Scalia has not been replaced and probably will not until after the 2016 election is over — the court would have to vote 5-3 to overturn the case. If the justices split 4-4 then the Second Circuit ruling would remain in effect.
This means that five Supreme Court justices would have to believe that the Second Circuit ruling is so in error that the nation’s highest court should weigh in and reverse their decision.
That seems highly unlikely.
4. So what happens now?
I think Brady will end up serving the suspension. Potentially Roger Goodell could reduce the suspension to forestall any further legal appeals, but why would he do that now that he’s got the entire four game suspension upheld? With this ruling, the power dynamic has swung back in Goodell’s favor.
I predicted the Second Circuit would reverse the district court citing the commissioner’s broad authority in the CBA.
Now that they’ve done so this is a big win for the NFL and Roger Goodell.
If you disagree with the ruling, the players have only themselvse to blame. They gave the commissioner insanely broad powers in their most recent collective bargaining agreement.
All this ruling does is strengthen Roger Goodell’s control over NFL football.
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