March 2016 | by Michael Coyne
Michael L. Coyne, Dean and Professor of Law at Massachusetts School of Law at Andover
During Tom Brady’s Court of Appeals hearing Judge Chin asked two key questions. Chin’s comment/question that the evidence of ball tampering is “compelling, if not overwhelming” was the lowlight of the day for Tom Brady and Patriots fans but his question concerning NFL Commissioner Roger Goodell’s motivation goes to the heart of the matter—unfortunately for Brady, his team may have fumbled the ball.
Motivation plays a huge role in human nature. Juries and other fact finders often focus on motivation in determining guilt. We want to know why something happened. While lawyers do not need to prove motivation to be successful— the Government never proved motivation nor did it have to in order for the jury to find Aaron Hernandez guilty of murder—it simplifies the determination of other factual issues.
Judge Parker initially raised a related issue by asking the NFL’s lawyer, former United States Solicitor General Paul Clement, about Goodell’s role in these proceedings as “judge, jury and — executioner isn’t the right word — but enforcer.” Goodell playing so many roles strikes at the heart of arbitrator partiality, which is among the strongest justifications for invalidating an arbitration decision.
That is why Judge Chin’s question to NFL Players Association attorney Jeffrey Kessler was so important. A direct answer would have changed the dialogue and perhaps even the likelihood of Brady winning. Problematic however was Kessler’s role as the attorney for all the players in the NFL. A direct answer to the question of the Commissioner’s motivation might have hurt both the NFL and the NFLPA’s long-term financial prospects and popularity. Judge Chin asked Kessler what motivated Goodell to go on this witch-hunt against Tom Brady on such an inconsequential matter as Kessler saw it. Kessler responded by saying that Goodell “was out to protect the $3 million” spent on the Wells Report.
Seriously. In a sport with revenues of twelve billion dollars in 2014-2015, the NFL‘s motivation to scapegoat Tom Brady was based upon justifying the expenditure of the equivalent of the cost of a cab ride from Times Square to NFL headquarters? Throwing good money after bad, the NFL then spent $20,000,000 in legal fees pursuing Deflategate. Even if true, it is a tough sell.
The answer should have been what many believe. Deflategate concerns age-old issues that we continue to face in our society. It is about class, race, power, and workers’ rights. The NFL created and magnified the circus that is Deflategate for the last 18 months to take our eye off the real issues confronting the NFL. Focusing our attention on The Deflator, cell phone privacy, and literally hot air, we have not discussed the NFL’s real problems. The NFL has failed to deal with domestic violence in any meaningful way. The NFL has failed to deal with player discipline issues in an even-handed, colorblind manner, while seeing football players who risk their safety and lives for their billionaire owners – as partners, not well-paid plantation workers- to be taken advantage of and cheated. The NFL has failed to promote gender equality and diversity throughout management. The NFL has failed to properly deal with the long-term player health issues related to concussions, player safety, and CTE.
After the Commissioner’s disastrous and uneven handling of disciplinary matters involving Bountygate, Ray Rice, Adrian Peterson, and Greg Hardy, penalizing a star white player for a matter that the NFL cared little about before that game, and based upon this year’s spotty “spot-checking” of footballs after that game, at least as harshly as his black counterparts does two things for the NFL. It reinforces the Commissioner’s extraordinary powers under the CBA as foreman of the shop. Don’t mess with the boss. It is also evidence that in a league that is predominantly black that white guys get screwed too. Indeed, had the NFL not come down hard on Brady, some could claim that Brady got a pass because he was white. The Commissioner is now colorblind. It’s the old Henry Jordan statement about Vince Lombardi: “Lombardi treats us all the same — like dogs.”
A direct answer to the question of Commissioner Goodell’s motivation potentially undermines the ability of the NFL to continue to be the most popular sport generating billions of dollars in annual revenue. It asks us to look deeper into the dark side of a sport we love to watch and ask questions to which we may not want answers.
Now Judge Berman did not rule on either Goodell‘s motivation or his partiality. Goodell expressing support for the Wells Report after its publication but before any arbitration hearing is clearly some evidence to question Goodell’s inability to judge the facts and law in an impartial way thus preventing him from serving as the arbitrator. Judge Chin, as a former labor lawyer knew that. Was he teeing the ball up for Brady to swing away?