Negotiation, Arbitration, Deflation: Tom Brady’s Appeal Yet Another Fourth Quarter Comeback for Labor Unions

Deflategate PictureBy Grady Hepworth

What is there left to do for someone with four Super Bowl championships, two Super Bowl MVP awards, ten Pro Bowl selections, and who recently became the fourth NFL player in history to throw for over 400 touchdowns in a career? On September 3, 2015, Tom Brady added another accomplishment to his résumé: groundbreaking legal precedent.

In a controversial United States District Court decision, the Honorable Judge Richard Berman overturned a penalty imposed upon the New England Patriots’ quarterback, Tom Brady, through an arbitration mandated by the National Football League’s Collective Bargaining Agreement (CBA). Although the NFL has appealed the judgment (the Second Circuit Court of Appeals has coincidently scheduled the hearing for the week of Super Bowl 50), the district court’s decision has far-reaching implications. For Patriots fans, the decision likely provides hope that another championship title looms on the horizon. However, for the legal world, the district court’s decision may have significantly shifted the balance of power under the NFL CBA.

The judgment handed down in National Football League Management Council v. National Football League Players Ass’n, (S.D.N.Y Sept. 3, 2015) is unique for a number of reasons. First, the Supreme Court narrowly reviews an arbitrator’s decision. In fact the United States Supreme Court has held that the exclusive grounds by which federal courts may vacate or modify an arbitral decision are under section 10 and section 11 of the Federal Arbitration Act (“FAA”). Under Section 10(a)(3), the courts can vacate an arbitral decision “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.”

The district court vacated NFL Commissioner Roger Goodell’s decision under section 10(a)(3) of the FAA, finding that due to “significant legal deficiencies” that were so “fundamentally unfair,” the decision could not be upheld. These legal deficiencies included findings that Commissioner Goodell provided inadequate notice to Brady of the potential four-game suspension he received for the alleged misconduct; Goodell denied Brady the opportunity to examine one of two lead investigators; and that he denied Brady equal access to important investigative files. The court found that these measures amounted to “prejudice” which jeopardized the legality of the procedural proceedings.

The decision greatly expands the duties the National Football League owes to its players through the course of any future disciplinary investigations. The decision sets a high standard of notice due to players, and it incentivizes players to challenge future disciplinary rulings. Outside of the NFL, the district court set a relevant precedent for labor unions to fight for greater procedural rights under collective bargaining agreements, which typically favor the employer.

The other aspect of the opinion that has not garnered much media attention, but may provide significant legal theater, is the court’s hesitancy to determine whether Commissioner Goodell implicitly biased the proceedings by assigning himself as arbitrator. Under Article 46 Section 2(a) of the NFL CBA, the commissioner may sit as a self-appointed hearing officer for appeals from disciplinary action. Although this clause was negotiated under the CBA, the NFL Player’s Association has sought to have the clause thrown out on legal principles. This year, the Missouri Supreme Court ruled that the Commissioner’s self-appointment as arbitrator was unconscionable. A similar federal decision could have led to drastic changes to the NFL disciplinary system, and would seriously diminish the NFL’s power to punish players for misconduct in the future.

Despite not delivering the fatal blow to Commissioner’s self-appointment powers, the district court’s decision was a tremendous victory for the NFL Player’s Association. Should Tom Brady prove equally successful upon appeal, we will witness a major shift in power towards the NFL Players Association, and potentially, organized labor.

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