Fairness, flawed disciplinary action, at heart of decision, law school dean says

Fairness, flawed disciplinary action, at heart of decision, law school dean says

By Douglas Moser | Posted: Friday, September 4, 2015 7:15 am

The federal judge’s decision released Thursday that threw out New England Patriots quarterback Tom Brady’s four-game suspension focused on what he found was a flawed disciplinary process that did not afford Brady basic rights, such as being able to examine evidence against him and question a key witness.

Judge Richard M. Berman, of the federal Southern District of New York, did not dig into any of the evidence the NFL collected and used to conclude that Brady was “generally aware” that two Patriots employees allegedly let the air out of the footballs the team used against the Indianapolis Colts before the start of the AFC Championship Game in January.

He said that not allowing Brady to see the notes, documents, full interviews and other information used to form the league’s final report on the matter, and not allowing him to question a league executive vice president who was involved in editing that final report, violated basic standards of fairness during the NFL’s arbitration process.

“The court finds that Commissioner Goodell’s denial of Brady’s motion to compel the testimony of (Jeff) Pash was fundamentally unfair and in violation of (federal law),” Berman wrote in his opinion. “Given Mr. Pash’s very senior position in the NFL, his role as Executive Vice President and General Counsel, and his designation as co-lead investigator with Ted Wells, it is logical that he would have valuable insight into the course and outcome of the Investigation and into the drafting and content of the Wells Report.”

Michael Coyne, dean of the Massachusetts School of Law in Andover, said the ruling is about the basic fairness of the process.

“It’s a full victory for Brady on every front and a significant rebuke of the NFL,” Coyne said Thursday.

Berman said denying Brady access to those documents and to Pash prevented Brady and the NFL Player’s Association, which represented Brady in the appeal, from “exploring, among other things, whether the Pash/Wells Investigation was truly ‘independent,’ and how and why the NFL’s General Counsel came to edit a supposedly independent investigation report.”

He also questioned how an independent investigator later became the NFL’s attorney through an arbitration process that centered on that investigator’s report.

“Compounding Brady’s prejudice is the fact that, as noted, (New York law firm) Paul, Weiss acted as both alleged ‘independent’ counsel during the investigation and also (perhaps inconsistently) as retained counsel to the NFL during the arbitration,” Berman wrote.

The judge also ruled that the NFL did not provide Brady adequate notice that being aware of others’ behavior and being uncooperative in an investigation were violations that could result in suspension.

Berman wrote that former NFL Commissioner Paul Tagliabue, in a past case, admitted that no players have ever been suspended for being uncooperative or obstructive.

Additionally, the only punishment set out for equipment violations in the rules and expectations provided to the players was a fine.

The NFL wasted no time filing an appeal, though Coyne said that process is likely to take until at least early next year, meaning Brady will stay on the field for the upcoming season.

“They have already filed the appeal, which is such a knee-jerk reaction,” Coyne said. “They have 30 days to file. They have no reason to file now, except for the news cycle and this is how the NFL operates, working without making deliberate decisions.”

He said he thought the chances that Berman would have ruled in Brady’s favor were about 50-50, because judges in labor cases usually defer to the arbitration process set out in the contract at issue.

Berman did note judges often defer, but said Brady’s punishment was based on significant “legal deficiencies.”

Coyne said appeals courts often defer to the lower courts in these types of decisions, but thought the chances of Brady’s suspension being reimposed now were slightly less than 50-50.

After accusations surfaced that the Patriots intentionally deflated footballs, which can be easier to catch and easier to grip depending on the quarterback, the NFL commissioned Ted Wells to investigate the claims. The subsequent report concluded that the two employees likely deflated footballs after league officials approved them and that Brady was “generally aware” this was going on.

Goodell issued the four-game suspension on Brady, slapped a $1 million fine on the Patriots and stripped the team of two draft picks.

Brady appealed the suspension through the NFL players’ contract’s arbitration process. Goodell himself sat as arbitrator, as he is allowed to do in the contract.

Goodell upheld the suspension he earlier had issued, and that decision was appealed to federal court in Manhattan.

Follow Douglas Moser on Twitter @EagleEyeMoser.

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