Our long national nightmare is finally, er, back again. Last year, a federal court ruled that NFL Commissioner Roger Goodell had not treated New England Patriots quarterback Tom Brady fairly in a disciplinary investigation, overturning a four-game suspension at the start of the 2015 season. Today, the 2nd Circuit threw a flag on the lower court and Brady, overturning the ruling and reinstating the suspension:
The NFL has won the latest round in its Deflategate legal battle, and Tom Brady is once again suspended for the first four games of the season.
The U.S. Court of Appeals for the Second Circuit has ruled that the NFL does indeed have the authority to suspend Brady, overturning a lower court ruling and reinstating the four-game suspension that Brady was originally handed last year.
If it’s any consolation, Brady and the Pats didn’t get shut out; they lost 2-1, with Chief Judge Katzmann dissenting. The main opinion implicitly rebukes the lower court for overstepping its authority to intervene in factual findings of the investigation, as well as their dissenting colleague. The two instead note that the proper oversight in arbitration governed by private agreements is simply whether the decision falls within the scope and authority of the arbitrator:
Our review of an arbitration award under the LMRA is, accordingly, “very limited.” Garvey, 532 U.S. at 509. We are therefore not authorized to review the arbitrator’s decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties’ agreement, but inquire only as to whether the arbitrator acted within the scope of his authority as defined by the collective bargaining agreement. Because it is the arbitrator’s view of the facts and the meaning of the contract for which the 12 parties bargained, courts are not permitted to substitute their own. Misco, 484 U.S. at 37–38. It is the arbitrator’s construction of the contract and assessment of the facts that are dispositive, “however good, bad, or ugly.” Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064, 2071 (2013). Contrary to our dissenting colleague, we do not consider whether the punishment imposed was the most appropriate, or whether we are persuaded by the arbitrator’s reasoning. In short, it is not our task to decide how we would have conducted the arbitration proceedings, or how we would have resolved the dispute.
Instead, our task is simply to ensure that the arbitrator was “even arguably construing or applying the contract and acting within the scope of his authority” and did not “ignore the plain language of the contract.” Misco, 484 U.S. at 38. Even failure to “follow arbitral precedent” is no “reason to vacate an award.” Wackenhut, 126 F.3d at 32. As long as the award “‘draws its essence from the collective bargaining agreement’ and is not merely the arbitrator’s ‘own brand of industrial justice,’” it must be confirmed.
This seems to me to be the most important point. What is the point of private arbitration agreements if courts will simply take it upon themselves to replace the arbitrator? After all, the NFL Players Association bargained to get this very arbitration language in their contract, and it’s not as if they were exactly powerless against the NFL owners while doing so. Whether Brady plays 12 or 16 games in 2016 is much less important than establishing boundaries for judicial intervention in what is supposed to be a private process between consenting parties.
The main opinion reminds the NFLPA of this point near the conclusion as well in their complaint that Goodell was biased in his approach because of his office:
Here, the parties contracted in the CBA to specifically allow the Commissioner to sit as the arbitrator in all disputes brought pursuant to Article 46, Section 1(a). They did so knowing full well that the Commissioner had the sole power of determining what constitutes “conduct detrimental,” and thus knowing that the Commissioner would have a stake both in the underlying discipline and in every arbitration brought pursuant to Section 1(a). Had the parties wished to restrict the Commissioner’s authority, they could have fashioned a different agreement.
In his dissent, Katzmann takes the position that the court should decide on the quality of punishment:
Additionally, on a more fundamental level, I am troubled by the Commissioner’s decision to uphold the unprecedented four‐game suspension. The Commissioner failed to even consider a highly relevant alternative penalty and relied, instead, on an inapt analogy to the League’s steroid policy. This deficiency, especially when viewed in combination with the shifting rationale for Brady’s discipline, leaves me to conclude that the Commissioner’s decision reflected “his own brand of industrial justice.” United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960).
The other two jurists had already seemed skeptical of Brady’s claims of unfair treatment, ESPN points out today. They asked tough questions about Brady’s conduct, and the NFLPA attorney did not have convincing answers for them in the end:
Circuit Judge Denny Chin said evidence of ball-tampering was “compelling, if not overwhelming” and that there was evidence that Brady “knew about it, consented to it, encouraged it.”
The league argued that it was fair for Goodell to severely penalize Brady after he concluded that the prize quarterback tarnished the game by impeding the NFL’s investigation by destroying a cellphone containing almost 10,000 messages.
Judge Barrington D. Parker said the cellphone destruction raised the stakes “from air in a football to compromising the integrity of a proceeding that the commissioner had convened.”
“So why couldn’t the commissioner suspend Mr. Brady for that conduct alone?” he asked. Parker added: “With all due respect, Mr. Brady’s explanation of that made no sense whatsoever.”
What next? The NFLPA could request an en banc hearing at the 2nd Circuit, which seems unlikely to happen, or appeal the decision to the Supreme Court. Whether or not the latter would take the case depends on just how relevant they see this as a constitutional and/or precedential issue. That also seems unlikely to happen, although perhaps the case is quirky enough to interest four of the eight justices on the court at the moment. Perhaps a tie would prompt a demand for a sudden-death overtime term?
Alternatively, the NFL could simply negotiate a different punishment for Brady, especially given how far removed in time the offense would be to the penalty. If not, then it’s good news for the Arizona Cardinals, Miami Dolphins, Houston Texans, and Buffalo Bills, who’d face a Brady-less Patriots offense in September. Regardless of how the NFL acts now, the decision itself is good news for judicial restraint, if perhaps a minor victory at the major leagues.