Nguyen: The Judge’s Logic in Overturning Brady’s 4-Game Suspension

Friday, September 04, 2015

AiVi Nguyen, GoLocalProv MINDSETTER™

 

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In the legal world, courts give quite a bit of deference to arbitration decisions and only overturn them when there has been a clear error by the arbitrator, if the decision was unfair, or if there was a lack of due process.

In a 40-page decision issued today, Judge Richard M. Berman of the U.S. District Court for the Southern District of New York vacated NFL Commissioner Roger Goodell’s 4-game suspension of Tom Brady.

Judge Berman found that the suspension was based on “several legal deficiencies” including (1) inadequate notice to Brady of the potential penalty and the alleged misconduct; (2) wrongfully denying Brady the chance to examine 1 of the 2 lead investigators – NFL Executive VP and General Counsel Jeff Pash; and (3) wrongfully denying Brady equal access to the investigation files.

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Inadequate Notice to Brady

A cornerstone of due process is to give the accused fair notice of what they allegedly did wrong. Notice has a particular legal definition. In this case, Judge Berman found that Brady had no notice, meaning there is no way he could have known, that he could be suspended for 4 games for his “general awareness of ball deflation by others or participation in any scheme to deflate balls.” He couldn’t have had notice because it’s not in the rules and no one has ever been suspended for 4 games for involvement in ball deflation.

In other words, you can’t willy-nilly issue punishments out of left field.

If you recall, Goodell compared Brady’s alleged involvement in Deflategate to steroid use to rationalize the 4 game suspension. However, Judge Berman found that the 4-game suspension for steroid use was collectively bargained, so unlike in Brady’s case, players are on notice that if they are caught using steroids, they can expect a 4-game suspension. The judge also specifically held that: [N]o player alleged or found to have had a general awareness of the inappropriate ball deflation activities of others or who allegedly schemed with others to let air out of footballs in a championship game and also had not cooperated in an ensuing investigation, reasonably could be on notice that their discipline would (or should) be the same as applied to a player who violated the NFL Policy on Anabolic Steroids and Related Substances” i.e. comparing Brady’s offense to steroid use had no basis.

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The court also found that Brady did not have notice of his violation. This is important. The court found that the 4-game suspension was based entirely on the Wells Report’s finding that Brady was “generally aware” of the ball deflation by others. The NFL argued that Goodell had disciplined Brady for more than just being “generally aware,” that Goodell had found that Brady “approved of, consented to, and provided inducements in support of” the misconduct. The judge did not buy it. In other words, there is no evidence that Brady actively participated in the misconduct, so Goodell had no grounds to punish him for it.

The court found that Brady did not have notice that being “generally aware” of others’ misconduct was prohibited, “or any reasonable certainty of potential discipline stemming from such conduct.” Meaning,

if the rules do not say general awareness is wrong, how would Brady or anyone else know it’s wrong?

A technical finding that the court made was that Brady (and all players) have notice of the Player Policies, which assess a monetary fine, not suspensions, for “player equipment violations designed to gain a competitive advantage.” The NFL punished Brady pursuant to the Competitive Integrity Policy, which is only provided to chief executives, club presidents, general managers, and head coaches, not players. You can’t punish people for violations of rules that do not apply to them.

Brady Should've Been Allowed to Examine Pash

Pash was the co-lead investigator on the Wells-Pash investigation and Pash was allowed to review the draft Wells Report and provide comments and edits to it before it was released. The NFL argued that Pash played “no substantive role in the investigation” and thus did not allow Brady to question him at the appeal.

Although an arbitrator does not have to follow all the formal rules that a court follows with respect to evidence, an arbitrator must give the parties an adequate opportunity to actually present evidence and to cross-examine adverse witnesses. Specifically, “players must be afforded the opportunity to confront their investigators.” Because Brady was barred from examining Pash, he was prejudiced.

Brady Should've Had Access to the Investigative Files

Goodell denied the Players Association’s requests for access to quite a few documents of the Wells-Pash investigation. So how could Brady challenge the evidence against him if he did not know what all of it was? According to the court, the answer is he couldn’t. When you are barred from defending yourself against allegations because you do not have access to all the information, you are prejudiced.

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The court vacated Brady’s 4-game suspension, effective immediately, meaning Brady will play on September 10. The NFL may very well appeal, though the odds of it winning on appeal are questionable, at best, given Judge Berman’s legal reasoning.

AiVi Nguyen is a trial lawyer with the Law Firm of Bowditch & Dewey, LLP in Worcester.

 

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