Nguyen: Appealing the Suspension: Brady’s Play Options

Nguyen: Appealing the Suspension: Brady’s Play Options

What most people do not understand about Tom Brady’s war with NFL Commissioner Roger Goodell over Deflategate is that the rules of engagement are governed almost exclusively by the NFL Collective Bargaining Agreement, which sets forth very specific procedures that the players, the players association (NFLPA), the clubs and the league must follow in resolving disputes.

The current CBA was executed in 2011 and is valid and enforceable until 2020.

In the latest development, last Friday, the NFL rejected the NFLPA’s motion for Goodell to recuse himself as the hearing officer who will preside over Brady’s appeal of a four-game suspension in connection with Deflategate. The NFLPA argued that Goodell could not be unbiased given his extensive involvement in the Wells Report (he was the one who ordered the multimillion dollar report), the investigation of Brady and would likely be called as a witness at the hearing. Goodell’s position is that it was Troy Vincent, VP of football operations, that meted out Brady’s punishment, not Goodell, thus there is no conflict of interest.

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While Brady’s punishment was not technically issued by Goodell, most Pats fans believe that Goodell is aiming for an X on Brady’s back and merely using Vincent as a layer between Goodell and the investigation, for the exact purpose of denying partiality.

Moreover, there is a question of whether Vincent even had the authority to suspend Brady. According to Article 46 of the CBA, it is the Commissioner, Goodell, who has the power to suspend a player “for conduct detrimental to the integrity of, or public confidence in, the game of professional football.” There is no language in Article 46 that allows for Goodell to delegate that authority to another person.

Brady filed an appeal of the suspension.

Pursuant to his authority under Article 46, Goodell appointed himself as the hearing officer to preside over Brady’s appeal.

To add insult to injury, pursuant to Article 46, Goodell’s decision of the appeal “will constitute full, final and complete disposition of the dispute and will be binding.” Many sports fans and legal experts anticipate the appeal will just be a rubber stamp of the original punishment.

Darn that Article 46.

Does this mean that Brady has no way out and is bound by Goodell’s decision? No. Brady can sue the league in court. This is America!

While the CBA is meant to restrict all disputes to resolution by the mechanisms provided within the four corners of the CBA and outside of court, there is a carve-out in Article 3 that would allow Brady to file a suit against the league claiming that Goodell breached the CBA by not allowing an impartial arbitrator to decide the appeal, as outlined in Articles 16 and 43.

The question is WHEN should Brady file a suit in court, before or after the appeal. Both approaches have been taken in different suits against the league.

In 2012, in connection with the Bountygate scandal, when members of the New Orleans Saints were accused of receiving bonuses, or “bounties,” for purposely injuring opposing players on the field, the accused players filed lawsuits against Goodell, claiming that he was not an unbiased arbitrator. Sound familiar? The difference there was that Goodell was the person who issued the suspensions in addition to naming himself the decision maker on appeal. Some may argue that Goodell learned his lesson in Bountygate and that’s why he offered Vincent up as a patsy this time around. In Bountygate, after the pressure from the court, Goodell stepped down as the hearing officer of the appeals and ultimately the players won.

In the more recent case of Adrian Peterson, accused of child abuse and suspended for 6 games by Goodell, Peterson’s legal team waited until after the appeal and filed a suit in federal court. In that case, while Goodell was not the hearing officer of Peterson’s appeal, the federal judge found that the decision made by Harold Henderson, the hearing officer hand-picked by Goodell, should be voided. The NFL appealed the judge’s decision to a higher court arguing that the judge did not have authority in the league’s labor dispute, which should only be governed by the CBA. The hearing on that issue will not be heard until this fall.

Of the two scenarios, I would pick the former. The only benefit in waiting until after the appeal is if you believe that Goodell will change his mind at the appeal, negating the necessity of trial at all. I don’t think many Pats fans are holding their breath on that one. Plus, if the higher court in the Peterson case determines that the courts have no place in labor disputes under the CBA, getting an appeal decision overturned after the fact may be next to impossible.

There is no indication as to when Brady’s appeal will actually happen. Under the CBA, the parties can agree to delay the hearing and given that football season doesn’t start for several months, there is less of an urgency to rush this process.

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