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by Joseph Brooks*

Following the 2014 AFC Championship Game, the Indianapolis Colts accused New England Patriots quarterback, Tom Brady (hereinafter “Brady”), of participating in a scheme to release air out of game-balls in order to gain an unfair competitive advantage.[1]  After the accusations, Commissioner Goodell initiated an investigation led by Ted Wells.[2]  Wells concluded in his independent report that it was “more probable than not” that Brady and Patriots personnel colluded in a deliberate effort in violation of the Playing Rules.[3]  After reviewing the Wells Report, Goodell upheld his four-game suspension of Brady.[4]  Brady appealed his suspension to the United States District Court for the Southern District of New York where Judge Richard Berman overturned Goodell’s four-game suspension.[5]  On October 26, 2015, the NFL filed its appellate brief with the United States Court of Appeals for the Second Circuit in which the league argues that Judge Berman incorrectly ruled in favor of Brady on September 3, 2015.[6]

Why Is the NFL Appealing the Decision?

Brady’s guilt is not actually the subject of this appeal.[7]  The NFL has much at stake in its appeal against Brady; the resulting decision will establish future precedent in arbitration decisions.[8]  A fundamental principle of labor law is that labor law protects arbitrators’ decisions from judicial interference and interpretation.[9]  The NFL’s main goal in its appeal is to establish the NFL commissioner’s power under the collective bargaining agreement.[10]  If the NFL decided to accept the decision, the league would essentially open the door for future players to challenge punishments in court rather than through an appeal hearing.[11]

What Are the NFL’s Main Arguments?

First, the NFL contends that Judge Berman did not adhere to the narrow deferential standard in accordance to the Labor Management Relations Act.[12]  The NFL argues that under the LMRA, a court must enforce an arbitrator’s award if it “draws its essence from the collective bargaining agreement” as long as it “is plausibly grounded in the parties’ agreement.”[13]  The NFL furthers this argument by stating that Goodell’s conclusion was based on significant evidence that Brady was at least “generally aware” of the rule violations that occurred as a result of deflating footballs.[14]

Second, since Brady’s conduct was unlike any before it, the Commissioner noted the closest parallel was the policy governing performance-enhancing drugs which purpose serves to threaten the integrity of the game.[15]  The NFL argues that the Commissioner was not imposing discipline under the steroid policy but the punishment he chose was “fully consistent with, if not more lenient than” the punishment under that policy.[16]

Third, the NFL maintains that Commissioner Goodell has broad authority under Article 46 of the CBA allowing the Commissioner to determine when “player misconduct has threatened the integrity of the game, and it affords him the discretion to impose discipline for such offenses according to his considered judgment.”[17]  The NFL advances its argument providing that every player has notice of this authority, including Brady, when the player signs his Player Contract.[18]

Finally, the NFL contends that the district court was wrong to second-guess the Commissioner’s decision not to allow Brady’s legal team to cross-examine NFL general counsel Jeffrey Pash and to examine the notes compiled by Ted Wells’s law firm.[19]  The NFL sustains that since Pash’s role was limited in the investigation and Brady’s legal team was allowed to interview Wells regarding Pash’s role in the investigation, the Commissioner found that Pash’s testimony would be cumulative.[20]

What Will Happen Next?

The NFLPA will respond to the NFL’s appeal by December 7, looking to uphold that Judge Berman correctly applied the law.  Since Judge Berman is rarely reversed, the NFLPA is confident that it will win the appeal.[21]  At the same time, the NFL remains confident that Judge Berman’s decision will be reversed upon appeal.  The NFL is assured this appeal will mirror the outcome in Clarett v. NFL,[22] where the U.S. Court of Appeals for the Second Circuit reversed the decision of the trial court and ruled in favor of the NFL.[23]

* Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2017, Villanova University School of Law

[1] See Mike Reiss, NFL Investigating Patriots’ Footballs, ESPN (Jan. 20, 2015), (reporting that underinflated football could be easier to grip and catch).

[2] See Emily Kaplan, Who exactly is Ted Wells?, ESPN (May 7, 2015), (noting that Ted Wells is partner at Paul Weiss and one of the most successful defense attorneys in the country).

[3] See Darin Grant, Ted Wells:“More probable than not” Patriots manipulated balls, NBC Sports (May 6, 2015), (finding Brady guilty).  The Wells report stated: “Based on the evidence, it also is our view that it is more probable than not that Brady (quarterback for the patriots) was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls.” See id. (quoting the Wells Report).

[4] See Mike Reiss, NFL Upholds Tom Brady’s Suspension For His Role in Deflategate, ESPN (July 29, 2015), (reporting that Goodell cited new evidence of Brady destroying his cell-phone even though Brady was aware that investigators requested access to it).

[5] See Josh Saul et al., Brady’s Deflategate Suspension Tossed; Judge Mocks Goodell, N.Y. Post (Sept. 3, 2015, 10:18 am), (reporting that NFL announced it will appeal Berman’s decision).

[6] See Frank Schwab, It’s Back! NFL Files Appeal Over Judge Berman’s Deflate-Gate Decision, Yahoo! Sports (Oct. 26, 2015, 6:35 pm),–nfl-files-appeal-in-court-over-judge-berman-s-deflate-gate-decision-223514497.html (reporting NFL filed its appeal on October 26, 2015).

[7] See Michael McCann, Major Takeaways From the NFL’s Appeal Brief of Deflategate Ruling, Sports Illustrated (Oct. 26, 2015, updated Oct. 27, 2015), (noting question of whether Brady is guilty of the act is factual question while this appeal focuses on questions of law).

[8] See Schwab, supra note 6 (recognizing that case is all about commissioner power).

[9] See Lester Munson, NFL Appeal of Brady Decision Could Lead to Precedent-Setting Court Ruling, ESPN (Sept. 3, 2015), (noting that NFL is looking to defend the arbitration precedent set in the Rice, Peterson, and Bountygate investigations); see also United Paperworkers Int’l Union, ALF-CIO v. Misco, Inc., 484 U.S. 29, 36 (1987) (finding that courts must enforce an arbitrator’s award if it “draws its essence from the collective bargaining agreement” (citations omitted)).

[10] See Munson, supra note 9 (analyzing that appeal is not about deflated footballs but setting precedent).

[11] See Cork Gaines, The Tom Brady Ruling is a Disaster For the NFL, Business Insider (Sept. 3, 2015), (concluding Commissioner’s arbitration power can diminish with loss in this appeal).

[12] See Brief for Appellants at 30, Nat’l Football League Management Council v. Nat’l Football League Players Association, Nos. 15-5916, 15-5982, 2015 WL 5148739 (S.D.N.Y. Oct. 26, 2015) (noting this standard is among the “narrowest known to the law.”).

[13] Id. (quoting court)

[14] Id. at 42 (stating Goodell’s ruling was based on this “general awareness”).

[15] Id. at 19 (arguing that steroid policy calls for a four-game suspension upon first positive drug test and a six-game suspension if the player uses a masking agent).

[16] Id. at 37 (stating discipline cannot be outside the bounds of what the parties agreed to in the CBA).

[17] Id. at 29 (quoting language from appeal).

[18] Id. at 29-30 (recognizing every player is put on notice of Commissioner’s authority when they sign first contract).

[19] Id. at 47 (arguing CBA does not require testimony of any witness under Article 46).

[20] Id. at 48-49 (noting Goodell offered to reopen his ruling on Pash testimony but Brady’s legal team never tried to take advantage of that opportunity).

[21] See McCann, supra note 7 (reporting that of the 204 decisions by Judge Berman that were appealed, 159 (78%) were affirmed and only 17 (8%) were reversed).

[22] See Clarett v. NFL, 369 F.3d 124 (2d Cir. 2004).

[23] See id. at 16 (holding that federal labor law favoring and governing collective bargaining process precluded application of antitrust laws to NFL’s eligibility rules).


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