The only real surprise in today’s federal appeals court ruling reinstating the NFL’s four-game suspension of Patriots’ quarterback Tom Brady is that the decision was not unanimous.
Writing for the majority of the Second Circuit’s three-judge panel, Judge Barrington Parker correctly reasoned that the main objective of the arbitration process sanctioned by federal law is to give very broad discretion to participants in an industry to collectively bargain dispute resolution procedures that suit them. Thus, the issue is not whether a federal court reviewing an arbitration decision agrees with the decision, approves of the process by which it was arrived at, or thinks the collective bargaining agreement (CBA) under which the decision was made is a wise one. The question was not whether NFL Commissioner Roger Goodell’s imposition of a four-game suspension was correct or prudent; it was whether it was a decision he had the discretion to make within very wide parameters.
The law strives to allow industry participants to work out conflicts cooperatively, with a minimum of government interference. The court’s extremely limited role, which Judge Parker observed is “among the most deferential in the law,” is to evaluate whether the arbitration procedures met the minimum legal standards of the Labor Management Relations Act. If the arbitrator was “even arguably construing or applying the contract and acting within the scope of his authority,” the decision will not be disturbed.
There is no question that Goodell had the authority under the CBA to appoint himself as the arbitrator. Neither can it be credibly disputed that CBA Article 46 gives the commissioner exceedingly broad discretion to punish “conduct detrimental to the integrity of and public confidence in the game of professional football.” The proof that the Patriots tampered with the footballs was overwhelming. And the evidence that Brady had to have known about the tampering was equally daunting.
Put aside the fact that low-level team employees who wanted to keep their jobs would never dare deflate footballs without the knowledge and approval (I would say, the encouragement) of the quarterback – especially a star QB of Brady’s historic stature. There was also abundant evidence that Brady (a) had made public statements about liking the footballs to be slightly under air-pressure standards; (b) had lobbied the league to allow teams to control the condition of game footballs; (c) had provided lucrative autographed memorabilia to one of the Pats’ employees who handled the footballs; and (d) had destroyed his cellphone after the league’s investigators asked to see it for purposes of reviewing his text messages with Pats’ employees who handled the footballs. Indeed, Brady destroyed the phone the very day he was scheduled to be interviewed by the league’s investigators.
Under the circumstances, and in light of the extreme latitude federal law instructs courts to give arbitrators, it is specious to argue that Goodell abused his discretion or that his decision was irrational. The lower court ruling by District Judge Richard Berman that vacated the suspension was a naked exercise in judicial overreach – a court rewriting rules to suit the judge’s preferences rather than respecting the interests of the industry participants who negotiated the rules fair and square. In fact, some aspects of Judge Berman’s decision were so indefensible that the Players Association did not attempt to defend them.
To be sure, there is a great deal of room to argue that the punishment does not fit the crime. Undoubtedly, Brady is bearing the brunt of the league’s embarrassment over prior notorious incidents in which the Pats bent or flat-out broke the rules.
For what it’s worth, I believe the hullaballoo over the footballs was, well, inflated. Teams have been doctoring the footballs for eons, and in ways much worse than the Pats were accused of here. Let’s not forget that the referees handle the balls on every play, and the opposing defense does so on many plays – if the balls were noticeably deflated, that would be easily detected. When this “scandal” first broke, I watched an interview with the Hall of Fame quarterback Dan Marino, who admitted that he might not be able to tell whether a football was inflated to spec – plus or minus, say, a pound of air pressure. Moreover, bear in mind that in the very game in which the Pats got caught (at the end of the first half), they absolutely slaughtered the Colts in the second half, after the refs ensured that the balls were inflated to spec.
On the other hand, the Pats went to elaborate effort to deflate the balls before a big playoff game, after the refs had already examined and approved them for use. More significantly (to my mind and, it appears, to Commissioner Goodell’s), Brady destroyed evidence while he was publicly posturing about cooperating fully with the investigation. Everyone knows that’s a no no.
I don’t know whether I would have suspended Brady for four games, but I certainly can’t say that Commissioner Goodell acted unreasonably in doing so. More importantly, the decision was Goodell’s to make – not the court’s. If the players think the arbitration process needs tinkering, they should try to bargain for that outcome in the next CBA. But our government cannot even run a government competently, so it should not presume to tell the NFL how to run the NFL.