Deflategate appeal has wide implications for sports leagues

ByLester Munson ESPN logo
Thursday, March 3, 2016

On Thursday afternoon, in a majestic courtroom on the 17th floor of the Thurgood Marshall Courthouse downtown in New York, three distinguished judges who hold degrees from Ivy League universities will listen to some of the nation's highest-priced lawyers argue about air pressure in footballs.

The judges of the nation's second-highest court will determine whether U.S. District Judge Richard M. Berman was right or wrong in overturning Tom Brady's four-game suspension at the start of the 2015 season. Brady was suspended by NFL commissioner Roger Goodell for his role ina scheme to lower the pressure in footballs used in a game, for obstructing an investigation into the incident and for destroying important evidence.

The case has implications far beyond what happened in the incident that became known as Deflategate. The appellate court decision will establish whether sports league commissioners have final authority in disciplinary procedures established by collective bargaining agreements between players' unions and leagues or whether their decisions can be reviewed in federal court.

How did we get here?

The NFL began an investigation after the New England Patriots defeated the Indianapolis Colts 45-7 in the AFC Championship Game on Jan. 18, 2015. The Colts complained that several footballs used in the game were underinflated.

The league appointed an attorney, Ted Wells, to investigate whether the underinflation was done on purpose. In a 243-page report, Wells wrote:

"For the reasons described in this Report, and after a comprehensive investigation, we have concluded that, in connection with the AFC Championship Game, it is more probable than not that New England Patriots personnel participated in violations of the Playing Rules and were involved in a deliberate effort to circumvent the rules. In particular, we have concluded that it is more probable than not that Jim McNally [the Officials Locker Room attendant for the Patriots] and John Jastremski [an equipment assistant for the Patriots] participated in a deliberate effort to release air from Patriots game balls after the balls were examined by the referee. Based on the evidence, it also is our view that it is more probable than not that Tom Brady was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls."

As a result, Troy Vincent, the league's executive vice president of football operations, suspended Brady for four games, fined the Patriots $1 million and stripped the team of a first-round draft pick this year and a fourth-round pick in 2017.

The Patriots did not appeal the ruling, but Brady sought an appeal through the collectively bargained arbitration process. Goodell was the arbitrator.

Brady lost in arbitration but sued the league in federal court, won that decision and the NFL filed an appeal to this court.

What will happen in court?

Each side -- the NFL and Brady/NFLPA -- will be allowed 15 minutes to offer highlights of the arguments they have presented in a series of written briefs. Jeff Kessler, who has produced numerous courtroom victories for professional athletes, will argue for Brady and the union. Paul Clement, one of the nation's great appellate lawyers, will argue for the NFL.

Neither Goodell nor Brady is expected to be in the courtroom for the arguments.

When is a ruling expected?

A ruling could take up to three months.

What will the NFL argue?

The NFL's principal assertion, according to its briefs, will be that federal judges are not permitted to review or to reverse a ruling of a labor arbitrator unless there is evidence of "severe transgressions" like "fraud" or "dishonesty" or a "complete departure from the collective bargaining agreement." Dozens of legal precedents indicate that a decision like the decision Goodell made on Brady is "shielded by some of the most deferential standards known to the law."

The most famous of these legal precedents is a U.S. Supreme Court case involving Steve Garvey's attempt to recapture money he lost during the MLB owners' collusion conspiracy of the 1980s. Reviewing a bizarre ruling from an arbitrator, the high court refused to intervene on the ruling even though the arbitrator's decision was "improvident, even silly." Even when the arbitrator's "procedural aberrations rise to the level of affirmative misconduct," federal judges may not interfere with "arbitrators' decisions that the parties [players and owners] bargained for."

What will the NFLPA and Brady argue?

The NFLPA and Brady's principal assertion in its brief filed for this appeal is new and surprising. After Kessler agreed in his opening statement in the arbitration hearing before Goodell that the league's written "uniform/equipment policy" did not apply to incidents involving footballs, Kessler wrote in his brief for this appeal that the uniform policy did apply and that, as a result, Goodell's possible ruling should lead to a collectively bargained fine of just $5,512.

The union lawyers assert that the equipment policy applies to "ball tampering" and that it provides in boldface type that "first offenses result in fines."

Does it matter if Goodell and Brady won't attend the hearing?

It shouldn't, in theory. But many legal observers believe that the U.S. District Court judge who ruled in favor of Brady, Richard Berman, might have been a bit star-struck.

Berman, in his deliberations on the case, insisted that both Brady and Goodell appear in his courtroom for mediation sessions. It is unusual for a judge who will be presiding over a trial and assessing the veracity of witnesses (including Brady and Goodell) to meet with the key characters in the litigation in private sessions before the trial begins. But that is exactly what Berman ordered and did.

Both briefs filed by the NFL and NFLPA in this case mentioned the celebrity aspect.

The first phrase on the first page of the NFL's first brief in this appeal gets right at it: Stripped of its celebrity," the NFL lawyers state, "this case involves a straightforward exercise of authority granted under a collective bargaining agreement."

Kessler and NFLPA noted in their brief that "the district court was neither star-struck by 'celebrity' nor unaware of the legal standards for judicial review of arbitration awards."

Does the appellate court ruling in this case potentially affect others?

The NFL plans on asking the three judges of the high court to reverse Berman's ruling "with no remand." That means they think Berman was so egregiously incorrect that the reviewing court should enter a judgment for the NFL without sending it back to Berman for further inquiry. It's a dramatic demand that shows the intensity of the league's frustration and irritation with what happened in Berman's courtroom from the mediation to the decision.

The appellate court ruling is important and has implications beyond sports because the ruling at its base gets at the heart of all arbitration arrangements between an employer and its employee union.