The legal saga between the NFL and Tom Brady, affectionately known as Deflategate, is gearing up for what likely will be its final show down on Thursday when both sides argue the NFL’s appeal of Judge Berman’s decision before the Second Circuit Court of Appeals. During oral argument, a three-judge panel will only consider legal arguments and facts that were previously presented to Judge Berman. There will be no discussion of whether or not Brady actually deflated footballs.
The Logistics: The argument is scheduled to begin at 2 p.m. EST on Thursday (3/3). Both the NFL and NFLPA/Brady will have 15 minutes to argue their case in front of a panel of three judges (more on them below). As the party who filed the appeal, the NFL will go first and have the option to reserve a few of their 15 minutes for rebuttal after the NFLPA’s turn. Typically, oral argument is more of a Q & A back and forth between the lawyers and the three judge panel rather than an uninterrupted presentation by the advocate. Most appellate judges keep strict time deadlines so expect the whole thing to take just over 30 minutes. Some appellate courts post an audio recording of the hearing online after argument; however, the only way to get a recording in the Second Circuit is to order a CD.
As noted above, a three-judge panel will hear the appeal. For an in-depth review of each judge, I suggest reading this Michael McCann Sports Illustrated article. While a lot has been made over two democratic appointed judges are on the panel (who in theory are pro-labor, favoring Brady), the composition of the panel will not determine the outcome of the appeal. Sports Law Professor Gabe Feldman put it best, “Party lines can be a helpful shortcut, but it’s not always accurate.”
Judge Barrington D. Parker: Judge Parker was appointed as a federal trial court judge by President Clinton in 1994 and nominated as an appeals judge by President George W. Bush in 2001. Although his nominations cross party lines, he is considered more of a conservative judge.
Chief Judge Robert A. Katzmann: Chief Judge Katzmann was nominated by President Clinton in 1999 and is the longest serving appellate judge on the panel. He tends to lean to the left of center on most issues.
Judge Denny Chin: Judge Chin is the least experienced appellate judge on the panel (sitting since 2010) and the second democratic appointed judge (Clinton). Prior to serving as a judge, he worked in private practice as a labor lawyer. Thus, he will be very familiar with the type of issues presented in this case.
How did we get here? In short, Brady won at the trial court level and Judge Berman vacated Brady’s four-game suspension (check out a full description of the facts and background of this case including Judge Berman’s decision here).
Brief Review of Berman Decision
First, Judge Berman ruled that Brady lacked notice that he could be suspended for being “generally aware” of others deflating footballs and that Goodell, by suspending Brady without having adequate means to do so under the CBA, “dispensed his own brand of industrial justice.” Specifically, the Court held that nothing in the CBA allowed Goodell to suspend Brady for being “generally aware” of the equipment managers’ actions. It also held that Brady had notice of polices related to uniform and equipment violations, but that he could only be fined, and not suspended, under those provisions.
Notably, the Court found that Goodell’s attempt to use the “conduct detrimental” standard, rather than using the specific policy related to uniform and equipment violations, was “legally misplaced.” Next, the Court ruled that Goodell improperly denied Brady the opportunity to cross-examine the co-author of the NFL’s investigation report during the arbitration. Judge Berman found this fundamentally unfair because the co-author played an important role in drafting the investigation report and thus, Brady was prejudiced by not being allowed to cross-examine him. Berman noted that “players must be afforded the opportunity to confront their investigators.”
Based on these rulings, the Court vacated Brady’s four game suspension. The Court declined to make a ruling on whether Goodell was an evidently partial arbitrator but retained jurisdiction to rule on this issue at a later point if necessary.
NFL Arguments to Overturn Berman’s Opinion
NFL Argument #1: Judge Berman applied the wrong standard of review: The NFL argues that Judge Berman should have affirmed Goodell’s arbitration decision if it had anything to do with the NFL’s Collective Bargaining Agreement (CBA) or if it “drew its essence from the CBA.” According to the League, the only way that Berman could have overturned the award is if it was “procured through fraud and dishonesty” or it can be understood solely as “an exercise of the arbitrator’s own brand of industrial justice.” In other words, the NFL’s stance is that Berman was required to affirm the award even if he disagreed with the outcome and could only overturn the award if Goodell acted fraudulently or so egregiously that he completely ignored the CBA. The NFL argues that the award was at least related to the CBA and Berman should not have overturned the award.
NFL Argument #2: Brady had notice that Goodell could punish him for “any conduct” that harms the game: The NFL argues that Judge Berman’s “notice concerns were misplaced” and that Brady was only required to receive notice of Goodell’s power to suspend for conduct detrimental to the League. In the NFL’s words:
Applying the proper standard, the only “fair notice” to which a player is entitled is notice that the Commissioner has the power to discipline a player for conduct that he deems detrimental to the integrity of, or public confidence in, the game of football, and to impose discipline for such conduct that includes the discipline imposed here. Brady unquestionably had that in spades.
In other words, the NFL argues that Brady had notice – via his signed NFL player contract – that Goodell could suspend him for any conduct detrimental to the game.
NFL Argument #3: Judge Berman could not question Goodell’s factual determination not to compel the testimony of co-lead of the Wells Report, Jeff Pash: The NFL argues that the language of the CBA does not require the testimony of every witness but, rather, it allows the Commissioner discretion to determine what testimony is appropriate at the hearing. Thus, Goodell’s decision to not allow Jeff Pash’s testimony was a factual determination within the bounds of his power under the CBA.
If Brady wins: The NFL could request an en-banc rehearing of the case that includes all of the appellate court judges (unlikely to be granted). The NFL could then ask the U.S. Supreme Court to take the case (it is also unlikely that SCOTUS would accept the case). In all likelihood, if Brady does win, the case is finally over. Obviously this scenario has been the NFL’s worst nightmare from the beginning. Not only do they lose the case, but they also set a strong negative precedent for future cases (appeals court cases count more than trial court level cases).
If the NFL wins: There are a few scenarios that could play out. First, the appeals court could rule that Berman overstepped his authority and reinstate Brady’s four-game suspension (to be served at the beginning of the 2016 season, pending further appeals). Second, the appeals court could reverse and remand the case back to Judge Berman with instructions to clarify and/or change his rulings and/or rule on issues that were passed over last time around. Berman’s new ruling would again be subject to appeal to the Second Circuit. Third, the appeals court could vacate Judge Berman’s decision and force the NFL and Brady to redo the arbitration hearing.
Who usually wins in the Second Circuit?
According to the statistics, the NFL is a heavy underdog. Only 9.4 of civil appeals in the Second Circuit Court of Appeals are reversed. Only 8% of Judge Berman’s opinions are reversed by the Second Circuit.
Copies of the Deflategate Appeals Briefs:
Next Steps: There is no definitive time frame for an appeals court to issue an opinion. As a general rule, decisions take between 2-4 months but as we have seen in the Adrian Peterson case, they – at times – can take longer.