Assessing the Potential Wide-Ranging Impact of the NFL’s Deflategate Win

Brady FeaturedMake no bones about it, today’s NFL’s win in Deflategate is a landmark opinion.

Not only does the opinion come from a federal appeals court, which increases the opinion’s precedential value in future cases, and from the appellate court where the NFL’s headquarters are located, which is more likely to be the venue for future cases (further increasing the precedential value), the NFL won the appeal on every issue plus two issues that Judge Berman did not even address.

Because Brady probably will not be granted either of his appeal options — an en banc review to all of the appellate court judges or an appeal to the U.S. Supreme Court — today’s decision is likely the end of the road for this case, Brady will serve the 4-game suspension, and the NFL Players Association is stuck with the language of the opinion in perpetuity.

From the NFL’s perspective, this is the biggest win in any case interpreting the league’s precious Article 46 language, and there is no doubt that it will be heavily relying on this opinion in future litigation regarding the commissioner’s powers. The opinion confirms the NFL’s legal position in recent years: Roger Goodell has almost unlimited power under the CBA to suspend a player for any conduct he deems “detrimental.”

Turning back the clock to September, remember that the NFL took a huge risk by appealing Judge Berman’s scathing opinion. If Brady won on appeal, which most thought likely at the time, the NFL would have been stuck with a federal appellate level decision drastically reigning in Goodell’s powers. Fast forward to today and, unless something unforeseen happens, the NFL’s gamble will have paid off in a big way.

Here is how the Second Circuit’s opinion may impact Goodell’s role in future discipline cases:

  1. Goodell does not have to do a good job explaining his rulings:

While dismissing Goodell’s steroid analogy as “not troubl[ing]”, the court stated:

(Page 18) “We are not troubled by the Commissioner’s analogy. If deference means anything, it means that the arbitrator is entitled to generous latitude in phrasing his conclusions.”


(Page 19) “Nor does the CBA require the arbitrator to “fully explain his reasoning,” … it merely mandates that the hearing officer render a “written decision,”

Apparently, all Goodell (or his *appointee*) has to do is write something/anything down. In the future, it wouldn’t be a shock to see Goodell write only his conclusions (i.e., “I suspend X player, pursuant to my authority under Article 46 of the CBA, for four games.”) and, if challenged, argue that he had no obligation under the CBA to explain his reasoning.

  1. Goodell may not be restricted by other parts in the CBA:

One of Brady’s arguments was that if there are more specific provisions in the CBA governing certain conduct — in this case, the uniform and equipment policies — then those should override Goodell’s Article 46 (conduct detrimental) power. Thus, the argument goes, Goodell could only discipline Brady under the uniform and equipment policies with the first offense resulting in fines and could not suspend him under Article 46.

After concluding that the uniform and equipment policies do not apply, the court went even further, seeming to indicate that Goodell’s conduct detrimental power overrides other provisions of the CBA:

(Page 16) “… Article 46 gives the Commissioner broad authority to deal with conduct he believes might undermine the integrity of the game. The Commissioner properly understood that a series of rules relating to uniforms and equipment does not repeal his authority vested in him by the Association to protect professional football from detrimental conduct.

So, as long as Goodell masks any ruling in “conduct detrimental” language, thereby “plausibly ground[ing]” the ruling in the parties agreement, he is free to discipline for any conduct, even if it is covered by another provision in the CBA.

  1. It is up to Goodell to determine the severity of a penalty: 

In rejecting the dissenting opinion’s argument that Brady’s suspension was “unprecedented”, the court noted:

(Footnote 12, Page 26) But determining the severity of a penalty is an archetypal example of a judgment committed to an arbitrator’s discretion. The severity of a penalty will depend on any number of considerations, including the culpability of the individual, the circumstances of the misconduct, and the balancing of interests inherently unique in every work environment. Weighing and applying these factors is left not to the courts, but to the sound discretion of the arbitrator.

Want Goodell’s punishment to act as a deterrent to players? The NFLPA should just send this passage to every player.  This is the most troubling part in the opinion. Not only does it confirm that Goodell, and only Goodell, should determine the severity of the penalty, but it also states that his rationale behind that decision should not be reviewed by the courts.

  1. The NFLPA is stuck with Goodell as judge, jury, and executioner:

In his opinion overturning Goodell’s arbitration ruling, Judge Berman elected not to rule on whether Goodell, as the imposer of discipline and judge on appeal, was “evidently partial” by ruling on issues relating to his own conduct. In an unusual move, even though Berman did not rule, the appeal court took on the issue:

(Page 33) Here, the parties contracted in the CBA to specifically allow the Commissioner to sit as the arbitrator in all disputes brought pursuant to Article 46, Section 1(a). They did so knowing full well that the Commissioner had the sole power of determining what constitutes “conduct detrimental,” and thus knowing that the Commissioner would have a stake both in the underlying discipline and in every arbitration brought pursuant to Section 1(a). Had the parties wished to restrict the Commissioner’s authority, they could have fashioned a different agreement.

In a sense, this passage brings everything together. If you are following Deflategate closely, you will hear this a million times this week: If the NFLPA was so worried about Goodell’s role, then why didn’t they negotiate it out of the last CBA?

The answer to the question is more complicated than you might think. While the NFLPA does deserve a good deal of the blame, the NFL was not (and is not) going to decrease Goodell’s role without receiving something valuable in return. It was rumored that the NFL was asking for an 18-game season in exchange for a neutral arbitrator to hear disciplinary appeals. Put yourself in a player’s shoes at the negotiating table, would you agree to the rigor of two more games just to change a rule that only effects a few players a year?

Where does this leave us?

While good arguments can certainly be made that courts may interpret these passages differently or they may erode over time, there is no discounting the fact that the appellate court’s opinion validated the NFL’s stance that Goodell has unchecked power to discipline for conduct detrimental. Adding these arguments up leaves us with the inescapable conclusion that Goodell can do just about anything he wants in the name of “conduct detrimental”:

  1. Goodell barely has to explain why he ruled the way he did;
  1. As long as Goodell call it “conduct detrimental”, Goodell’s Article 46 authority overrides other provisions in the CBA;
  1. It is completely up to Goodell to determine the severity of a penalty; and,
  1. Goodell may continue to hear appeals of discipline penalties he gave out.

Considering that the NFLPA and NFL will not formally renegotiate the CBA for another four years (there is a chance that the parties could agree to change it before then, but – for reasons stated above – don’t count on it), the players are stuck with this current framework for the foreseeable future.

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  1. Roger says

    “Roger Goodell has almost unlimited power under the CBA to suspend a player for any conduct he deems “detrimental.””

    Interesting that you put “almost” into that sentence. Obviously, this means his discipline decisions no longer require evidence of misconduct. But based on the logic they used in the decision, is there any punishment scenario where these judges would have ruled that Goodell violated the CBA? What if he issued Brady a personal fine? A lifetime ban? A hundred one-handed pushups?

    • Daniel Werly says

      One-hundred one-handed pushups would be brutal!

      In all seriousness, I used the word “almost” because, at least in theory, there are limits. Courts review arbitration decisions to see whether the arbitrator acted within the scope of the CBA. As long as his decision is somewhat tied to the agreement, and is “not merely the arbitrator’s own brand of industrial justice,” then the court will not vacate the arbitrators decision. Judge Berman thought that Goodell had overstepped his bounds but two of the three appeals judges obviously did not. As you smartly pointed out, their reasoning leads us to wonder what it would take for them to consider his actions “his own brand of industrial justice.”

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