Deflation-gate

In his opinion piece in The Conversation, law professor H Brian Holland asks, "Deflategate has never been about footballs — so what, exactly, is the NFL up to?" An excellent question!Holland says that it's actually all about power. In the 2011 CBA (Collective Bargaining Agreement) the NFLPA negotiated away all control over discipline, placing it fully in the hands of Roger Goodell in return for a bigger share of league revenue. Goodell isn't interested in fairness or consistency or even evidence - he's only interested in power. The CBA gave him the power, it's his, and he's not going to give it up. Doesn't the judge realize that the commissioner can do whatever he likes regarding discipline as long as he follows the process outlined in the CBA? (For those interested, here's the text of the Collective Bargaining Agreement.)Holland suggests that Goodell doesn't realize that the CBA doesn't forfeit the NFL players' reasonable expectation of what all labor in this country expects and is entitled to: fair and consistent treatment. When the NFLPA signed the CBA, they did not sign away the right to due process with conclusions based upon evidence. In other words, the NFL can't just write a report, claim it proves their case, then declare case closed. The report *does* have to actually prove their case, otherwise the process isn't fair and consistent. The truth isn't just whatever the NFL says it is.And this is perhaps why Judge Berman keeps harping about the facts of the case. If the NFL truly doesn't care whether the evidence supports their case (and that's sure the way they're arguing when they keep pointing out to the judge that only process is at issue in this court challenge and that he's just there to rubber stamp their decision), then the NFL's process truly was arbitrary and capricious, and Judge Berman will overturn it.I liked the article's conclusion: "And a loss in this case may well spell the end for Roger Goodell." But I actually disagree. If Goodell wins and Brady sits out four games then I think that Kraft, one of the more powerful owners in football, will gradually marshall his forces, and after two or three years Goodell will be forced out. But if Goodell loses then his power will be greatly diminished, and forcing him out early may just not be worth the effort.--PercyEdited by Percy, : Grammar.Edited by Percy, : Grammar.

Let me apply a different spin to the NFL's tactic.A question I have about the court case, and one which has not been discussed here is the question of 'what is the standard of review' in the court case. The assumption most people have is that it is a de novo review in which all of the evidence is going to be reconsidered by the judge.But that is not necessarily the case, particularly when the first step is mutually agreed arbitration. I don't know what the standard of review is actually supposed to be here, but if it something less than a completely new trial, then the NFL lawyers would be incompetent if they did not insist on the judge sticking to the whatever the review is supposed to be, particularly if that review is close to outcome decisive.The NFL's position may be that the judge is supposed to review the process for compliance with the players agreement. Brady's side would argue differently and would insist on a review of the facts on something close to a de novo basis. There is nothing nefarious about either position.

The airwaves and the print media have been filled with the comments of legal experts saying that only the process can be reviewed by the judge. It's understandable that those only casually following the case from a news headline level of detail might be unaware of this. There was the investigation and Goodell's initial ruling, then there was the appeal under binding arbitration of the CBA, and now there's this hearing combined with settlement talks with Judge Berman, and the losing party can appeal to a higher court, and the NFL can conduct the appeal under the CBA again if they so choose. Not sure what you mean by a "completely new trial." Yes, they're not incompetent and that's what they are insisting, even in the face of all the judge's criticisms. Speculation is that the NFL doesn't care about the beating they're taking on the facts and is following this approach because they know they'll ultimately win on the law, even if they have to appeal all the way to the Supreme Court. More speculation is that the judge is examining the evidence to see if there's grounds for vacation on the basis that Goodell's ruling and punishment was arbitrary and capricious. Not a word I used or implied. Boneheaded and incompetent are, I think, appropriate adjectives for the NFL investigation, while stubborn, power-hungry and "substantial disregard for honesty and fairness" apply to the NFL's pursuit of Tom Brady.--Percy

By new trial, I mean essential a de novo review of the facts where each side is allowed to introduce new evidence. An appeal is not the same as a trial. In an appeal, generally speaking only errors of law and process are guaranteed to be reviewable. During an appeal, the judge does not do fact finding except in the most egregious of circumstances, so generally speaking no new evidence can be introduced. (Some small exceptions in criminal cases) Those repeated appeals you list would be on smaller and smaller grounds each time.Edited by NoNukes, : No reason given.Edited by NoNukes, : No reason given.

I've been given to understand that's not possible in this case, i.e., neither a fresh review of the facts nor new evidence.But I don't think any new evidence is necessary. The existing evidence is sufficient, as On the Wells report from the American Enterprise Institute makes clear. Unfortunately, from what the legal experts appear to be saying, a fresh review of the facts is not on the table.And that's what makes Judge Berman's blasting away at the NFL evidence so perplexing. Is he laying the basis for finding against the NFL on the basis of "arbitrary and capricious?" Is he trying to pressure the NFL into offering Brady a reasonable settlement, since the current NFL settlement offer is for Brady to completely capitulate? If the latter then it's easy to see why the NFL is ignoring him - they believe the law will ultimately support them, if not in this round then in the next or the next.--Percy

I think the latter. The judge, IMO, is doing his job at this point. He may have limitations on how he can rule, but he may have his own, separate opinion about what ought to happen. And there is no legal reason why the two sides cannot be asked to settle on something reasonable. If it works, then this crap does not get appealed to a circuit court, or end up back on this same judge's desk on yet another expedited basis.Frankly I find the idea of a federal judge spending time looking at football rules to be an inexcusable and probably even immoral waste of court resources. Surely there is real stuff of more vital importance to the respective parties than this crap. But instead the NFL gets that stuff put off for another time. I know it is sacrilegious to say it, but sports stuff, at least everything except Hawks basketball, just ain't all that vital. I would be perfectly fine with this case going on the federal docket with an injunction allowing Brady to play even if the case took years to resolve. Sure. And what I am suggesting is that such a plan is exactly what the NFL ought to be following. The plan does not prevent the NFL from arguing substantively if needed. But only if needed.

In today's Washington Post columnist Sally Jenkins argues that Roger Goodell’s insistence on acting as emperor makes the NFL vulnerable to a legal smackdown. Best excerpts:

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The Brady case teaches us a lot about labor laws and how the NFL regards itself as above them. It’s about basic procedural fairness, whether Goodell has the right to inflict a vindictive and capricious punishment on Brady based on no evidence at all it’s not even clear the game balls in the AFC Championship game were deflated by a few whiffs of air simply because he wants to prove he can make the league’s best quarterback kiss his ring. If Brady can be treated this way, then so can you, or any other employee. That’s the heart of the case and why it’s important.
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While Goodell has sweeping powers to issue player discipline under the CBA, Berman made it clear he does not have the right to willfully misstate and mislead, gin up phony investigations based on pseudo-science, and then issue Draconian four-game suspensions simply because he’s furious Brady and the New England Patriots don’t say, All hail to the emperor.

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Arbitration agreements in employment are very common. It's in the best interests of both labor and management that disputes be solved quickly and inexpensively. Usually the arbiter is neutral, but in the CBA between the NFL and the NFLPA the arbiter is the NFL. The NFL does have a clear set of rules that it enforces on players, but it decides whether or not a rule has been violated, it decides the punishment, and if there's a disagreement then the NFL is also the arbiter. How can the NFL be a fair arbiter of its own evidence, investigations and decisions? And Goodell isn't even trying to maintain a facade of fairness or neutrality. He blatantly out-in-the-open biased as all get out. Doesn't labor have a reasonable expectation of fairness no matter the specifics of any labor agreement?I vaguely recall that inherently unfair contracts cannot be enforced. For an extreme example, management cannot enforce a contract where employees aren't allowed to quit. But I haven't heard or read this principle mentioned in regard to Deflategate. Maybe it's not true.--Percy

Your recollection is vague indeed. There are plenty of one sided, enforceable contracts. Unconscionable contacts cannot be enforced, yes, but unconscionable means way more than just uneven and unfair. You yourself have probably signed arbitration contracts that strip you of all meaningful recourse.

Aren't we talking about the same thing? Having the arbiter be the same organization you're having a dispute with seems inherently unfair, what you're calling unconscionable. I just signed one this week. The arbiter is a neutral party.--Percy

Wrong, one sided, stacked terms can be enforceable. Unconsionable is a term of art that covers things found to be so egregious as to make a contract unenforceable. Not getting the big end of the stick, or getting the poor end of a bargain is not sufficient alone, particularly when the parties are both strong and represented by counsel.The legal question you are asking is whether a contract where the commissioner decides the issues is enforceable. Yes, the particular arbitration scheme is one sided with respect to which side chooses the judge, but the scheme is also the result of an arms length negotiation between well represented parties each of whom benefits greatly from the terms of the contract and each of whom had substantial strong bargaining position. It appears, as lots of people noted at the end of the last work stoppage, that the players yielded some power to the owners for cash. Whatever the judge decides to do, one thing that is most unlikely, IMO, is that he will rule that such a negotiated scheme is not enforceable.Let's compare that situation to the typical situation that involves something like cable or telephone service contracts. The service provider generally picks and pays the arbitrator chooses which states law that will be applied, and your choice is simply not to sign the contract. Those terms are enforceable. Who picks the arbiter?Edited by NoNukes, : No reason given.

Okay, so we're talking about different things. I was talking about fairness and neutrality. When the NFLPA signed the CBA there was no expectation on their part that they were bargaining away their rights to fairness and neutrality. They said as much in their court challenge, that Goodell violated the CBA when he appointed himself arbiter of his own decision.I've been browsing through the sections of the CBA that deal with the arbitrator. There are two classes of arbitrator mentioned in the CBA. One is a System Arbitrator, the other is an Impartial Arbitrator. Roger Goodell must have been operating as a System Arbitrator when he heard Brady's appeal (the Impartial Arbitrator is someone who is appointed to serve for a two year period, so that's obviously not Goodell), but the System Arbitrator must be agreed to by both the NFL and NFLPA, and if they can't agree then there's a whole process described for choosing one (see page 117). But the CBA clearly does not give Goodell the right to appoint himself System Arbitrator. He wouldn't be (and obviously wasn't) neutral and fair. Yes, I've been reading the same thing, but I cannot find anywhere in the CBA where the NFLPA gave up their right to a neutral and fair arbitrator. In fact, the amount of language in the CBA devoted to selecting arbitrators indicates that mutually agreeable arbitrators was an important issue. That the CBA even uses the term Impartial Arbitrator for one of the two types of arbitrators makes clear that they believe impartiality is an important quality for an arbitrator, and this is self evident anyway.You seem to have a good eye for the legal. Maybe you can find where in the CBA the NFLPA gave Roger Goodell the right to arbitrate his own rulings.But the issue of fairness goes far beyond this mere procedural issue. The courts have to protect employees of organizations like the NFL from just inventing violations for which they then issue punishments and penalties, and then uphold their own rulings on appeal. The legal system should not permit people to bargain away the right to fairness, and in any case my reading of the CBA says that the NFLPA did not bargain away this right. The agreement specifies that the American Arbitration Association would run the entire arbitration process, and its rulings are not binding and can be challenged in court. Were the employer to appoint themselves as arbitrator that would appear to violate the agreement.--Percy

Lester Munson, legal analyst for ESPN, has written the best legal analysis I've seen so far (Don't be fooled by judge in Deflategate case; NFL will win in end over Brady). He argues that Brady will lose because both the law and legal history are fully on the NFL's side.

Best Excerpts

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While Brady and his supporters no doubt find some comfort in Berman's attack on Goodell's reasoning, they shouldn't try to read into Berman's statements and questions from the bench. Why? Because the judge is not leaning in Brady's direction. He has been, instead, doing what hundreds of judges do in American courtrooms each day: trying to push the side with the stronger legal position into consideration of a settlement.
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The rule that judges should not tamper with an arbitrator's decision is so well recognized and obvious that a U.S. Supreme Court opinion involving Steve Garvey was issued in 2001 as a per curiam decision. That means the ruling was not only unanimous, it should have been clear to all concerned that there was no reason for the case to be considered at the high court level.

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Munson does err slightly in that last paragraph. The Supreme Court decision was 8-1, not unanimous, though that number came out later and doesn't appear in the ruling (SUPREME COURT OF THE UNITED STATES: MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION v. STEVE GARVEY). Per curiam decisions are not necessarily unanimous. It just means the entire court is speaking as one. This seems strange since there *can*, apparently, be dissenting opinions on a per curiam decision, but oftentimes when trying to understand the law one just has to throw up one's hands in resignation and move on. Munson continues:

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The nation's highest court ruled that even when an arbitrator's decision was "improvident or even silly," it does "not provide a basis for a court to refuse to enforce the award." Even when the federal judge considering the arbitration award is "convinced that the arbitrator committed serious error, it does not suffice to overturn [the arbitrator's] decision," the court ruled.

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But this portion of the Steve Garvey decision isn't relevant. Sure, Goodell was "improvident and even silly," but the key complaint is that he was arbitrating his own decision.

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In the current NFL case, other legal precedents indicate that Goodell, as the arbitrator established in the NFL collective bargaining agreement, has the power to determine what constitutes conduct detrimental to the league, whether there was a violation, and what the appropriate punishment is. It's obvious, and it's simple. Goodell has the authority to answer all of the questions in the dispute, and a federal judge has no authority to reconsider his answers.

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As an equipment violation, can Deflategate really be a "conduct detrimental to the league" violation? To provide a simple example, shoe color is governed by the equipment rules section. Can Goodell really decide that some especially egregious choice of shoe color is a "conduct detrimental to the league" level of offense? This is where the "arbitrary and capricious" issues rear their head again. There *are* rules in place set up within the CBA. Goodell can't just make up his own rules as he goes along.

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The problem with these assertions is that the NFLPA agreed in collective bargaining that Goodell would be the final authority in conduct detrimental cases, and, as the arbitrator, Goodell decides on all issues of fairness. They agreed to a partial arbitrator, and they agreed to his notions of fairness.

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Here Munson is saying that the NFLPA agreed to a "partial arbitrator." If they really did that then I agree that greatly weakens Brady's case, but could someone please find where in the CBA the NFLPA agreed to a "partial arbitrator"?

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Earlier in the litigation, Brady's union attorneys filed more than 4,000 pages of exhibits, documents and transcripts in an effort to show some strength in their position. This kind of document dump is never a sign of strength. It is an admission that there is nothing conclusive or dispositive in their material, no smoking gun that supports their position.

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It does seem like a sign of weakness to do a document dump.

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Relying on the negotiated provisions for the draft in the union agreement, the U.S. Court of Appeals for the 2nd Circuit quickly reversed Scheindlin's ruling. The opinion upholding the NFL's position was written by Sonia Sotomayor, who is now a U.S. Supreme Court member.

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The above is about how quickly a court decision involving Maurice Clarett was overturned by an appeals court. One of my reasons for optimism is that court challenges could keep this tied up for years, by which time Brady would be retired. If appeals have a quick turnaround then this hope could be in vain.

Worst Excerpts

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In this case, recognizing that the NFL has convincing evidence and significant legal precedents on its side,...

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Yes, legal precedent is clearly on the NFL's side, but consider that the NFL's sheer chutzpah is itself without precedent.But the reason this excerpt fell into the "worst" category is because the NFL does not have convincing evidence. The whole reason there's an appeal at all is because their evidence is imaginary. Were the evidence actually convincing then Brady and the NFLPA would not have mounted the court challenge.

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The Brady legal team also claims that Brady had no "notice" that deflating game balls or that lying about it would be subject to punishment. The now-famous provisions of Article 46 of the collective bargaining agreement give the commissioner authority to impose discipline for any conduct that is "detrimental to the integrity of, or public confidence in, the game of professional football." It is difficult, if not impossible, to think that Brady could not have known that deflating game balls below the minimum required pressure did not affect the integrity of the competition. His awkward and unsuccessful attempt to cover up what happened show that he had "notice" that there would be a problem.

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Munson seems to be assuming Brady's guilt and has obviously not read the Wells report or studied the various criticisms of it.

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In their final brief for Berman, the union lawyers resorted to overstatement and hyperbole in their effort to conceal a weak position. The Goodell opinion, they said, is nothing but a "propaganda piece" and part of a "smear campaign" directed at Brady. It is not a sign of strength when union lawyers try to convince a federal judge that the commissioner of the most successful sports league in the world would deliberately slander and smear one of its most recognizable and greatest players.

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Yet slandering and smearing an outstanding sportsman like Brady is precisely what Goodell is doing. How does one ignore that elephant in the room?

Most Misunderstood Excerpt

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The strength of the NFL position in the litigation is indisputable.

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The local airwaves were buzzing about this phrase. For some reason local commentators interpreted Munson as saying that the NFL's evidence was indisputable. Munson was of course referring to their legal position being supported by a great deal of legal precedent. Many unsubtle nuances like this are missed by the local media. Generally they're a pretty astute bunch, but everyday there's another example of someone going off half-cocked.--Percy

Exactly. I'm not making an argument about fairness. But unlike the case when you sign a phone contract, this is not a contract of adhesion. The agreement between players and owners was negotiated. Obviously there are terms in the contract that favor each side. There weren't any hidden terms, and both sides had lawyers. I don't think, "we couldn't read the contract" is going to be a useful argument. I don't know enough to say. As we'd surmised... The pre trial injunction might not exist during the entire exercise. Edited by NoNukes, : No reason given.

But I've looked through the CBA and cannot find where the NFLPA agreed that Goodell could arbitrate his own decisions. Could this be another case of the NFL holding up a document and claiming it says something that it does not? If you or someone can find it then it would be very bad for Brady, but it would also be exceptionally strange. No competent organization would agree to letting a "judge," in this case Goodell, arbitrate his own decisions. That would be crazy. What are the circumstances where it exists versus doesn't exist? All articles I've read that touch on the subject assume Brady will seek an injunction if the ruling isn't in time or if the ruling goes against him pending appeal.--Percy

DupEdited by NoNukes, : No reason given.