Another “Deflategate” chapter has closed, but the book is far from being finished.
Federal District Court Judge Richard M. Berman issued his ruling Thursday vacating Tom Brady’s four-game suspension and called into question how Roger Goodell runs things over at the National Football League.
I think Brady had no choice but to fight Goodell’s decision to suspend him because his legacy was on the line. Everyone knows Brady did not actually deflate the footballs, and the best the NFL could do was have its own attorney report that Brady was “generally aware” of the deflation of the footballs in the AFC Championship Game against the Indianapolis Colts.
Now the tables have turned: It appears Goodell and the NFL have no choice but to fight Berman’s decision and appeal, because now Goodell’s legacy is on the line. If they do not appeal, all of Goodell’s discipline decisions taken to arbitration could be appealed by every player (since Goodell would likely be the arbitrator) to a federal court. Berman’s decision undermines Goodell’s power as outlined in the Collective Bargaining Agreement (CBA) that he can essentially do what he wants, when he wants.
What exactly did Berman say? To start, he DID NOT say that Brady was “innocent.” Instead, Berman focused on the fairness of the entire process. He reasoned that Goodell did not play fair — ironic since Goodell disciplined Brady and the Patriots for not playing fair — and, as such, the suspension should be vacated.
“The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four-game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators…and (C) denial of equal access to investigative files, including witness interview notes.”
First, Berman explained that deference should be given to the decision of an arbitrator, except for when it shouldn’t. Translation: You don’t have to respect the decision if it is patently unfair. Berman essentially said there was nothing fair about how Goodell played this game.
“The deference due an arbitrator does not extend so far as to require a district court to…confirm an award obtained without the requisites of fairness or due process,” his decision said.
The themes of lack of notice and fairness are apparent throughout his 40-page decision. He explained Goodell’s power and authority come from the CBA and his actions have to be in line with that. By ignoring the “law of shop” — that players need to be given advance notice of what is prohibited and the punishments that could result — Goodell didn’t play by the rules and did not abide by the CBA.
Second, it is not about what Brady did or did not do. It is not about the fact he destroyed his phone. It is not about whether he hindered an investigation. It is not about the fact he is arguably one of the best quarterbacks ever. It is about what Goodell failed to do.
Goodell did not give Brady notice he could be punished for his actions, Goodell did not let Brady confront those who were accusing him, Goodell did not give Brady all the documents that were used against him. All of this flies in the face of what our legal system is supposed to be about, just like “generally aware” does.
As things stand right now, Brady has won on procedure, not on the facts. As Doug Franz from the Doug and Wolf Show on Arizona Sports 98.7 FM asked me, “Now, how can the NFL win?” That is a great question.
I do not think the NFL can win. It can try to save some face, but winning is not in the cards.
Let me explain: A precedent has been set because the NFL has lost. Players know the courts have their backs. They now know, with this decision and others before it, that Goodell and the NFL’s perceived all-encompassing power over the players has been chipped away. They know they have a good chance of getting the decisions invalidated.
It is like a coach benching a player, and that player knowing that if he goes to the owner and whines, he will likely get to play. Authority has been eroded. Goodell and the NFL cannot just let that stand. They must fight.
However, it can save some face. Goodell believed he had the authority to make the call under the CBA. He believed it was his job to look at the other policies and try to draw parallels to fashion what he considered a just result. This had never happened before, so he took his authority and used it to do his job. He will use this as a learning experience. If he takes that stance then he will save face; he may even save his reputation and legacy.
I would go so far as to add that, if the NFL and the NFLPA take this opportunity to amend the CBA before the court action is over, then all will save face and the game will be better for it. However, at this point, if Goodell and the NFL continue to dig their heels in, they will not win, at least not in the court of public opinion.
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