#DeflateGate (Court of Appeals Reinstates Suspension)

[Vermont Green]

This is pretty much how I understand the law, too:

espn.go.com/espn/otl/story/_/id/13479971/fooled-judge-deflategate-case-nfl-win-end-new-england-patriots-tom-brady

I am an engineer, not a lawyer, so I understand the ideal gas law a lot better than all of the legal intricacies but I did read the referenced article but also some of the responses.  Curious what the lawyers here think about the responses.

Regarding the Ideal Gas Law, keep in mind that there is no proof that the balls were even deflated.  I think that tends to get lost.  The assumption is "come on, they must have done something" but that something that they may have done wasn't even enough to be measured.

Christopher Adams ·
Alexandria, Virginia


Lester, the next time you cite the Garvey opinion, have whatever paralegal at the NFL picked the quotes for you actually read the entire opinion, particularly the part that states "It is only when the arbitrator strays from interpretation and application of the agreement and effectively 'dispenses his own brand of industrial justice' that his decision may be unenforceable. Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960). Berman could very well find that Goodell strayed here both in the interpretation of what he could do under the agreement (the suspension based on a provision that applied to teams, not players), and his completely baffling refusal to allow Brady's lawyers to view the evidence underlying the findings of the Wells report and apply attorney/client privelege to Pash and refusing to allow his tesimony regarding his input on a document which Gooddell relied upon completely to make his initial decision and decision in the arbitration hearing.
I know the NFL pays ESPN - and consequently, you - to side with them on these issues. But for the love of God, if you're going to act like a lawyer on even an infotainment website, do your homework.

Jared Carson ·
Kansas State University


9 U.S. Code § 10 - Same; vacation; grounds; rehearing

(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—

(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

[D.o.s.]

Munson's got his preferences but I don't think he writes things without thinking them through, so there's that.

[Donoghus]

Stephanie Stradley (who I think has been really good in the past few weeks) was pretty hard on Munson's take on this & wrote about how she thought the "over-reliance on Garvey has been misplaced".   If you're on Twitter & interested in Deflategate, you should definitely give her a follow.

As an aside, I read up on the Garvey case and it's a pretty interesting story.  Goes back to the 1980s when MLB was in a heap load of trouble involving collusion.

[danglertx]

I too have been baffled at Munson's interpretation of this case.  I think every attorney should immediately recognize, this case isn't like Garvey and isn't like many, if any, arbitration case we have ever seen.

Rarely is an arbiter actually biased, which is why many of these cases get settled in favor of the arbiter.  Here we have an obvious conflict of interest.  There are also problems with the evidence, whether the CBA covers the items Goodell says they cover, the NFL's changing standard it just made up, not making witnesses available and on and on and on. 

Affirming this decision would essentially mean Goodell can suspend any player at any time for whatever it wants, citing it as an integrity issue.  The problem is, equipment issues aren't integrity issues as applied to stickum on towels and even warming footballs in a heater, which consequently changes the air pressure in the balls.  There was actually even a warning prior to the heating of balls that it wasn't allowed, yet the team still did it.  How much were they fined?  Who was suspended?

There is no difference in what the Patriots are accused of doing and what Carolina or Minnesota, whichever team it was... which is how big of an integrity issue ball pressure was to the NFL before it was the Patriots, I don't even know which team it was, did.  None.  I defy anyone to come up with a reasonable conclusion of how letting a tiny bit of air out of a ball and heating up a ball with a heater on the sidelines during a game differ in relation to the integrity of the game.  The only difference is that one team definitely did it, were caught on camera doing it, and admitted doing it.  The other had a five million dollar investigation which came back inconclusive at best.  Which one was detrimental to the integrity of the game?

Which way this goes I have no idea, but Munson's conclusions are really missing the facts of the case and whether the CBA covers this at all.

[Moranis]

Didn't the NFLPA agree to have a "biased" arbitrator though?  Doesn't that separate this from other arbitrations?

[Evantime34]

At this point I am not believing any story on deflategate coming from ESPN. They have consistently looked like a mouthpiece for the NFL during this situation.

[D.o.s.]

At this point I am not believing any story on deflategate coming from ESPN. They have consistently looked like a mouthpiece for the NFL during this situation.

[knuckleballer]

From Munson's ESPN article:
"The best they [NFLPA] have come up with in their briefs and arguments in support of Brady are vague assertions of "fundamental fairness" and the "evident partiality" of Goodell as the arbitrator.
The problem with these assertions is that the NFLPA agreed in collective bargaining that Goodell would be the final authority in conduct detrimental cases, and, as the arbitrator, Goodell decides on all issues of fairness. They agreed to a partial arbitrator, and they agreed to his notions of fairness."

During the hearing Berman has made statements such as:
. "There has to be some basic process of fairness that needs to be followed,” (In response to Goodell denying the NFLPA access to documents from the investigation)
. "Under the law the arbitrator doesn't have the authority to determine evidence will be cumulative" (in response to Goodell denying NFLPA to interview Pash as a witness)
. That Goodell made a "quantum leap" from general awareness to scheme in his ruling.
. "I’m trying to figure out what is the direct evidence that implicates Mr. Brady in that deflation…in that bathroom…on Jan. 18" He even had Kessler read a direct quote from Brady that he instructed the ball to be 12.5.

So it sounds like Berman is open to "fundamental fairness" and the "evident partiality".

Also, Goodell lied in his ruling about Brady's sworn in testimony about the conversations with Jastremski.  Goodell stated in his ruling that Brady testified that he did not speak to Jastremski about DeflateGate and only about preparation for the Super Bowl.  In his ruling Goodell found it not to be credible that Brady would not have discussed Deflategate.  This was a significant part of his explanation to how he came to his decision.  But when the transcripts were released, it was revealed that Brady did in fact testify to speaking with Jastremski about deflategate and extensively so.

I'm not a lawyer, but isn't it a problem that the arbitrator lied about the defendant's sworn in testimony and then used that lie to determine the defendant's guilt?  Wouldn't this speak to "fundamental fairness" and the "evident partiality"?  That doesn't sound vague to me.

[Roy H.]

I'm not a lawyer, but isn't it a problem that the arbitrator lied about the defendant's sworn in testimony and then used that lie to determine the defendant's guilt?  Wouldn't this speak to "fundamental fairness" and the "evident partiality"?  That doesn't sound vague to me.

On those particular points, it doesn't matter.  The Supreme Court has said that even when an arbitrator gets the law wrong, the award will still be upheld.  Getting a fact wrong, or misstating it, isn't enough to overturn an arbitrator award.

I'm sympathetic to some of the other arguments in terms of a lack of due process, but ultimately, I'm not sure that that matters.

[knuckleballer]

I'm not a lawyer, but isn't it a problem that the arbitrator lied about the defendant's sworn in testimony and then used that lie to determine the defendant's guilt?  Wouldn't this speak to "fundamental fairness" and the "evident partiality"?  That doesn't sound vague to me.

On those particular points, it doesn't matter.  The Supreme Court has said that even when an arbitrator gets the law wrong, the award will still be upheld.  Getting a fact wrong, or misstating it, isn't enough to overturn an arbitrator award.

I'm sympathetic to some of the other arguments in terms of a lack of due process, but ultimately, I'm not sure that that matters.

I don't know how you can say it was getting a fact wrong or misstating it.  Goodell had the transcripts and Brady talked about those conversations multiple times during his testimony.  It was an outright lie and the arbitrator used that lie to determine guilt.  And that's not getting the law wrong, it's getting the facts wrong.  No, it was lying about the facts.

How could that possibly not be a violation of general fairness?  If that's acceptable, what else is acceptable? 

[rocknrollforyoursoul]

Affirming this decision would essentially mean Goodell can suspend any player at any time for whatever it wants, citing it as an integrity issue.  The problem is, equipment issues aren't integrity issues as applied to stickum on towels and even warming footballs in a heater, which consequently changes the air pressure in the balls.  There was actually even a warning prior to the heating of balls that it wasn't allowed, yet the team still did it.  How much were they fined?  Who was suspended?

There is no difference in what the Patriots are accused of doing and what Carolina or Minnesota, whichever team it was... which is how big of an integrity issue ball pressure was to the NFL before it was the Patriots, I don't even know which team it was, did.  None.  I defy anyone to come up with a reasonable conclusion of how letting a tiny bit of air out of a ball and heating up a ball with a heater on the sidelines during a game differ in relation to the integrity of the game.  The only difference is that one team definitely did it, were caught on camera doing it, and admitted doing it.  The other had a five million dollar investigation which came back inconclusive at best.  Which one was detrimental to the integrity of the game?

This is basically what this case boils down to for me. I know there are legal issues, but laws are imperfect, as is the enforcement of them—not that we shouldn't have laws, but things should be fair. And there is absolutely nothing fair about issuing a mere warning to teams that messed with equipment on national TV but throwing the book at a team whose guilt can't even be conclusively shown.

[Rondo2287]

I'm not a lawyer, but isn't it a problem that the arbitrator lied about the defendant's sworn in testimony and then used that lie to determine the defendant's guilt?  Wouldn't this speak to "fundamental fairness" and the "evident partiality"?  That doesn't sound vague to me.

On those particular points, it doesn't matter.  The Supreme Court has said that even when an arbitrator gets the law wrong, the award will still be upheld.  Getting a fact wrong, or misstating it, isn't enough to overturn an arbitrator award.

I'm sympathetic to some of the other arguments in terms of a lack of due process, but ultimately, I'm not sure that that matters.

What about the fact where Berman said awards had been vacated in the past for not making key witnesses available. 

[Donoghus]

Let me be clear to take the following with a grain of salt.  It comes from the BSMW boards but sounds like a rather intelligent breakdown of this Garvey thing & how it applies. 

This is probably a good time to talk a little about the Garvey case, what it said, and what it means.

Garvey (yes, it's Steve, and no, it doesn't involve paternity) arose from the final collusion lawsuit/settlement between MLB and the MLBPA in 1990. Under the terms of the final settlement, a big payment (I think it was $260m) was paid to the union. Part of the agreement was a "framework" for distribution of the award to players under which aggrieved players would submit claims to the MLBPA, and if the claim was rejected, the player could go to an arbitrator, who would determine whether they were entitled to an award (i.e. whether they had been colluded against).

Garvey submitted a claim for $3m saying that the Padres had offered to extend his contract in 1985, then withdrew the extension offer due to owner collusion. It was denied; the MLBPA said he didn't provide any evidence of an extension offer. He appealed to arbitration. As part of his arb hearing, he submitted a letter from Ballard Smith, the Padres' GM in 1985, stating that Garvey had been offered an extension, which had been withdrawn. The arbitrator asked for more evidence on the claim, which he didn't get. He then ruled against Garvey, saying that he found the Smith letter very suspect, given Smith's statements in the past denying collusion and denying that Garvey was offered an extension.

Garvey appealed to the local Federal district court to vacate the arbitration award (or lack thereof). This is where it gets tricky.

1) The District court (Southern District of CA) denied his motion.
2) Garvey appealed that decision to the 9th Circuit
3) The 9th Circuit reversed the District Court's opinion, arguing that the arbitrator's refusal to consider the Smith letter was "inexplicable" and "bordered on the irrational". The reversal came with an order sending the case back to the District Court to vacate the award. ("Garvey I")
4) The District Court vacated the award, and sent the case back to the arbitrator for re-arbitration.
5) Garvey appealed the District Court order sending the case back to arbitration to the 9th Circuit.
6) The 9th Circuit heard the appeal and sent the case back to the District Court, and ordered the District Court to enter a judgment ordering the arbitrator to give Garvey his $3M. ("Garvey II")
7) The MLBPA appealed the 9th Circuit's order to the Supreme Court.

The Supreme Court, in a per curiam decision (= one that is not specifically authored by a justice, but considered authored by all concurring justices), threw out both of the 9th Circuit decisions and upheld the original District Court denial of Garvey's appeal. The substance of their opinion:

1) It's not the place of the courts to second-guess an arbitrator's factual conclusions. The court only analyzes whether the arbitrator's conclusions arise from the contract in question (i.e. is it the issue that the parties understood was being arbitrated), and even then only a conclusion that isn't even colorably related to the contract would be subject to vacatur.

2) Even if the court finds that vacatur is proper (either the decision is outside the scope of the contract, or the required fair procedure isn't present), the remedy is just vacating the award, and (if the contract permits), letting it be re-arbitrated. The court does not have the right to step in and decide the factual question itself (which the SupCt found the 9th Circuit did), because that is not what the parties bargained for, and it would be usurping the proper and agreed-upon role of the arbitrator under the contract.

The tl;dr takeaway from the case is that if you agree to an arbitrator, you're stuck with him if he's a moron, unless he gave you significant unfairness in process.

The Garvey case is HIGHLY relevant to this case in the abstract, because it definitively states that Brady cannot sue on the grounds that Roger Goodell made a factually incorrect conclusion, even if he could prove that (theoretically) in a court of law.

But, of course, that's not what the NFLPA is arguing. Nowhere in any of the filings will you see a direct claim along the lines of "the award should be overturned because Brady didn't do it." The NFLPA is arguing failures of procedure, and failures of scope -- both of which are clearly relevant and sustainable grounds for vacatur under Garvey (via its citation of a different controlling case, Paperworkers vs. Misco, Inc., that dealt with vacatur on procedural grounds).

[KeepRondo]

At this point I am not believing any story on deflategate coming from ESPN. They have consistently looked like a mouthpiece for the NFL during this situation.

lol TP

[knuckleballer]

I'm not a lawyer, but isn't it a problem that the arbitrator lied about the defendant's sworn in testimony and then used that lie to determine the defendant's guilt?  Wouldn't this speak to "fundamental fairness" and the "evident partiality"?  That doesn't sound vague to me.

On those particular points, it doesn't matter.  The Supreme Court has said that even when an arbitrator gets the law wrong, the award will still be upheld.  Getting a fact wrong, or misstating it, isn't enough to overturn an arbitrator award.

I'm sympathetic to some of the other arguments in terms of a lack of due process, but ultimately, I'm not sure that that matters.

Kessler did not raise this subject in his arguments on Wednesday so he obviously doesn't think it matters either.  I just can't believe that doesn't matter.   This was an important factor in Goodell's ruling as it led to Goodell not trusting Brady's credibility.

Goodell found that Brady’s increased communications with Jastremski after the AFC Championship game “undermine[d] any suggestion that the communications addressed only preparation of footballs for the Super Bowl rather than the tampering allegations”

But Kessler asked Brady multiple times about Brady's conversations with Jastremski and Brady repeatedly said they talked about deflategate as well as ball prep for the SB.  In cross examination, Reisner asked Brady about each and every communication and Brady again repeatedly said they discussed deflategate.  Then Goodell interjected and here are his questions:

COMMISSIONER GOODELL: So you asked him if he had done it?
THE WITNESS: Yes.
COMMISSIONER GOODELL: And he said no?
THE WITNESS: Yes, he said he didn't do it.
COMMISSIONER GOODELL: Did you ask him if he knew anybody else that had done it?
THE WITNESS: No, because I obviously didn't know that there was a -- that Mr. McNally -- I didn't know what his responsibilities were at the time. So John said, "We didn't do anything."

Unless Goodell has Alzheimers, this isn't just getting a fact wrong or a misstatement of a fact.  It is an undeniable outright lie important to the case.  Goodell used his own lie to determine guilt.

I understand deference to an arbitrator's judgment, but if the arbitrator's judgment is based ofF misstated facts or in this case his own lie, it's unbelievable.  Seriously, what if Goodell said that Brady confessed?  Would that just be a misstated fact as well?