March 2016 | by Michael Coyne
Michael L. Coyne Dean and Professor at Law at the Massachusetts School of Law at Andover
Clearly, Tom Brady had as bad a day at the 2nd Circuit Court of Appeals as Tom Brady can have. It looks bad—needing Malcolm Butler to rescue him bad– but there is a narrow path where Brady survives for another day. Even if the NFL and NFLPA do not finally resolve the complete disaster that constitutes their player disciplinary process and resolve the pending Brady and Peterson cases as part of a global settlement, few people are more capable of fourth quarter comebacks than Brady.
While the questions judges ask are not always indicative of the thinking of the Court, they are instructive. The detailed questioning of this super-hot bench shows the Court very carefully examined the underlying facts, even calling the evidence of ball tampering compelling if not overwhelming and the explanation of the destruction of Brady’s cell phone incomprehensible.
The law gives the arbitrator enormous latitude in reaching his decision. Credibility is always left to the finder of fact and will be deferred to by those reviewing the decision. It is why the NFL’s lawyer and former Solicitor General of the United States Paul Clement stressed Commissioner Goodell’s finding of Brady’s lack of credibility in responding to the panel’s questions.
The three-judge panel that heard Tom Brady’s appeal was thought to be a favorable draw for him as all were initially appointed to the bench by President Clinton with Presidents Bush and Obama elevating Judges Parker and Chin respectively to the 2nd Circuit Court of Appeals. That is what makes Judge Chin’s statement that the evidence was compelling if not overwhelming so disturbing to Patriots fans. Judge Chin, as a former labor lawyer representing unions and employees, is a vote Brady should have had and must have to sustain Judge Berman’s failure to confirm NFL Commissioner Roger Goodell’s arbitration decision.
The hitch is that Judge Berman’s decision rests on a foundation of sand. The law favors deference to an arbitrator’s decision and the NFL. At best, it is foolhardy to use statistics showing 5-10% reversal rates, as some did prior to the hearing, to support the opinion that the 2nd Circuit Court of Appeals would never reverse Berman. When billionaires fight, statistics are meaningless.
The Supreme Court’s decision in Garvey v. MLB is clear. As long as there is any evidentiary support for the arbitrator’s decision, the reviewing court must let it stand. It may not replace its “better” judgment for that of the agreed upon arbitrator. If Judge Berman thought Goodell’s errors sufficiently flawed the decision, he should have sent the case back to arbitration not simply reverse Goodell’s decision.
Being a fan means you wear rose-colored glasses at times but those glasses still allow you to see and analyze the evidence. Did something other than the ideal gas law likely go on with those footballs? Yes. Even the destruction of the cell phone— which a 2nd year law student would tell a client not to do—doesn’t mean sufficient evidence exists that Brady committed the offense and should be penalized $2,000,000. Complicity does not equal commission of the offense but that is the arbitrator’s call not Judge Bermans to make.
Now Tom Brady had as bad a day as Tom Brady can have yet there is still a narrow path where he survives for another day. Judge Berman’s decision focused, among other things, on due process violations—fundamental fairness. If the Court determines that the process was sufficiently flawed and those errors are not simply harmless then this Court may do what Berman should have done. Send it back to Commissioner Goodell to correct the procedural flaws and begin yet another round of deflategate. Perhaps even before a truly fair and impartial arbitrator.
There is a serious issue of the partiality and lack of independence of the arbitrator, which Judge Berman never addressed. Even if the parties agreed under the collective bargaining agreement to give Commissioner Goodell the power to hear the dispute, Goodells expressing support for the Wells Report after its publication, but before hearing the matter is clearly some evidence of Goodells inability to judge the facts and law in an impartial way thus preventing him from serving as the arbitrator. Tie the arbitrator’s partiality to his denying Brady basic fundamental fairness and the result appears inconsistent with the law even in light of the deference courts generally show to arbitration decisions.
Never count Brady out. It was never as good for him as some saw it after the Berman decision and it is not as bad for him now. There are sufficient reasons for the Court of Appeals to let Berman’s decision stand or even order further arbitration. Further arbitration to correct the procedural flaws may be the impetus for both sides to finally become reasonable and settle the case so the NFL can spend as much money on things that should matter like player safety, long-term player health, and CTE.