And so the Deflategate saga continues. A team of 11 legal experts filed yet another brief in support of Tom Brady on Tuesday, effectively arguing that NFL commissioner Roger Goodell made a mockery of the legal system by serving as a “non-expert” and “non-experienced” arbitrator who was also inherently and utterly biased.
The 11 experts in question are U.S. labor law and industrial relations professors from universities around the nation, including Cornell, Berkeley, Harvard and UCLA.
They joined an increasingly large and reputable group taking up arms on behalf of Brady and the NFLPA. In the past month, 21 scientists, famed arbitrator Kenneth Feinberg and the AFL-CIO have all objected to the U.S. Court of Appeals for the 2nd Circuit’s decision to side with Goodell and reinstate the four-game suspension that the commissioner slapped on Brady in May 2015.
The brief condemns Goodell for "dispensing [his] own brand of industrial justice" -- a phrase that the original judge on the case used as well. It claims that, in addition to the commissioner of the league being uniquely prejudiced and unable to decide a matter in which he’s directly involved, his ruling had no foundation whatsoever in the league’s collective bargaining agreement (CBA) -- despite what the 2nd Circuit had suggested -- thus rendering his disciplinary decision not only unfair but also unfounded.
In other words: The four-game suspension Brady received had no basis and no backing. At no time did the players' association and the league come together and agree that a man should sit out one-fourth of a season if he’s found to have let the air out of some footballs. The fact that Goodell invented this punishment -- and an appeals court supports his ability to do so -- reeks of an abuse of power and a breach of the league's agreement.
That's the issue these legal experts have taken with the 2nd Circuit’s ruling -- a ruling they claim could fundamentally undermine our arbitration system as it relates to labor law.
"[T]he panel's decision runs contrary to fundamental principles long settled by the Supreme Court," the brief reads.
"If left uncorrected, this decision may destroy the very process that the Court wishes to protect the peaceful resolution of labor disputes through a non-arbitrary and fair proceeding."
Moreover, the group argues that such a decision “empowers arbitrators to ignore the parties’ arguments and CBA-imposed limitations on their power.” The decision, they say, clashes with the supposed objective of the entire legal process.
"The root of arbitration is the assumption that both parties will be working with a neutral arbitrator," they said. "Anything else is fundamentally unfair.”
Before dotting the i’s and crossing the t’s of the brief, the 11 signees skewered Goodell for one last quirk in his decision-making rationalization process: for likening the deflation of footballs to the "taking [of] performance-enhancing drugs."
The comparison between these two acts does seem arbitrary. But seeing as the punishment for taking PEDs is outlined in the league's CBA, those two violations are simply not analogous.
And then there was this kicker:
"There are other significant differences between taking drugs and deflating balls. Taking performance-enhancing drugs often involves criminal law violations, which is not true of deflating footballs."
So, the group writes, the arbitration itself was flawed and its arbitrator biased. While this one case is no matter of life and death, the consequences it could have on future labor law arbitrations could imperil the lives and livelihoods of those less empowered than Tom Brady.
In other words, the ramifications of Deflategate wouldn’t be confined to Gillette Stadium. This bizarre saga could affect many others seeking fair practices from their employers -- and that, the brief concludes, is why the court must rectify the 2nd Circuit’s decision and rehear the case, thereby refusing to let Goodell “dispens[e]” his “own brand of industrial justice.”
The full brief can be read below.
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