http://sports-law.blogspot.com/2015/08/synopsis-of-brady-and-nflpa-legal.html Monday, August 03, 2015
Synopsis of Brady and NFLPA Legal Arguments
On Friday, Tom Brady and the NFLPA filed an Answer and Counterclaim in the New York federal court action initiated by the NFL to "confirm" the arbitration award rendered by Commissioner Goodell, which upheld Brady's four-game suspension arising out of Deflategate. This 54-page document lays out the NFLPA's legal arguments as to why Goodell's ruling should not be "confirmed" and, specifically, why it should be "vacated." It's a great piece of writing by Jeffrey Kessler and his team, and I believe it makes a compelling case to vacate Goodell's ruling, especially on the "no-notice" grounds, which have (in my view) constitutional dimensions similar to the Adrian Peterson and Ray Rice cases.
If you don't have access to PACER or just simply do not feel like slogging through a 54-page document, I have outlined the arguments raised by Brady and the NFLPA in their Answer and Counterclaim (which is the "mirror image" of their petition to vacate filed in Minnesota). I've basically streamlined their document into a much shorter outline, with some of my own thoughts mixed in (particularly those which relate to what I see as "constitutional-level" violations, as well as a discussion of the standard of review).
Link to the 11 page outline
http://www.bplegal.com/webfiles/CLIFF%20NOTES%20VERSION_8_03_15_v5.pdf====
My collapsing of the Sports Law Blog outline covering the main lines of attack: A. LACK OF NOTICE A longstanding jurisprudence of NFL arbitrations provides that NFL players may not be subject to discipline without advance notice of what conduct might result in such discipline, and what the disciplinary consequences might be.
[IOW, you cannot create a policy and a violation after the fact.]B. LACK OF “FAIR AND CONSISTENT” DISCIPLINE A long line of CBA precedents holds that discipline under Article 46 must be “fair and consistent.” Where the imposition of discipline is not fair or consistent, an abuse of discretion has occurred and the discipline must be overturned.
[In this section they argue that you cannot rely on the football testing because of all types of problems, which were admitted explicitly and implicitly by the NFL in its subsequent actions.] C. FUNDAMENTALLY UNFAIR PROCESS Courts may vacate an arbitration award under Section 1 the Federal Arbitration Act (“FAA”) where, inter alia, “the Arbitrators were guilty of [any] misconduct . . . by which the rights of ant party have been prejudiced, thereby amount[ing] to a denial of [a party’s right to] fundamental fairness of the arbitration proceeding.”
[Except: “For example, prior to the hearing, Goodell had ruled that Brady and the Union could not question essential witnesses, denied them access to the investigative files underlying the Wells Report (which were nonetheless available to the NFL’s counsel at the arbitration), and summarily rejected Brady’s unlawful delegation argument without considering any evidence (other than “facts” decreed by Goodell himself in his decision)”.]D. GOODELL WAS AN “EVIDENTLY PARTIAL” ARBITRATOR Federal courts also have authority to vacate an arbitration award if the arbitrator exhibited “evident partiality.”
To vacate an arbitration award on this basis in the Second Circuit, the challenging party has the burden of showing that “a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration."
[Excerpt: "Prior to serving as hearing officer, Goodell publicly lauded the Wells Report—the issue at the very heart of the appeal. By doing so, he made it impossible to serve as arbitrator in any proceeding challenging the conclusions of the Wells Report. And, unsurprisingly, his eventual Award declared the Wells Report unassailable in every respect."]====
IMO, Kessler could have done a better with item D, but I’m making that assessment without access to the actual filing. I do not see how Kessler does not mention that Goodell’s subordinates were actively involved with the ”investigative process”. The other sections seem strong, but while I have a decent background in constitutional, contract, franchise, and labor law by education and business experience, I’m not a lawyer, never mind one who deals with these issues in the 2nd Circuit.