Tom Brady Won Because Goodell is an Unqualified Arbitrator

Unless you live in a cave, you heard the news - Judge Richard Berman vacated Tom Brady's four game suspension and Bill Belli "cheat"'s Patriots will be starting their season with their golden boy at the helm. This upsets me. I am a pathetically loyal Jets fan and have hated Brady since Jets Linebacker Mo Lewis launched Brady's career with his beautiful sack of Drew Bledsoe. Unfortunately, that sack turned out to be the worst thing that ever happened to the Jets (the irony of a Jet player being responsible for launching Brady's career is not lost on any Jets fan). So it was just more salt in the wound when Judge Berman vacated Brady's suspension. Stripped of its legalese, Judge Berman's decision states that Brady won because Goodell is an unqualified arbitrator. Did Brady know the balls were deflated?  Probably.  Did Brady obstruct the investigation by having his cell phone destroyed?  Definitely.  Does the collective bargaining agreement ("CBA") or NFL rules allow Goodell to punish Brady with anything more than a fine for his behavior?  No.  And therein lies the problem - Goodell was tripped up by procedural deficiencies - all of his own making.

At the heart of the dispute before Judge Berman was Brady's argument that the only notice he ever received as to the penalty for tampering with equipment was in the "League Policies for Players" ("Players Policies").  The Players Policies states that the fine for a first offense of tampering with equipment is $5,512. However - probably because he believed that a $5,512 fine was insufficient - Goodell attempted to discipline Brady with a four game suspension pursuant to the Competitive Integrity Policy.  But the Competitive Integrity Policy is distributed only to Chief Executives, Club Presidents, General Managers and Head Coaches.  It was undisputed that Brady never received the Competitive Integrity Policy. Despite this, Goodell pushed forward and violated long standing legal precedent prohibiting a player from being disciplined without receiving advance notice of the applicable disciplinary policy.

"It is the 'law of the shop' to provide professional football players with advance notice of prohibited conduct and potential discipline. Any disciplinary program requires that individuals subject to that program understand, with reasonable certainty, what results will occur if they breach established rules." National Football League Management Council v. National Football League Players Association, 15 Civ. 5916, 15 Civ. 5982, pp. 19-20 (S.D.N.Y. 2015). Under this long standing precedent, Judge Berman found that Brady had never received the Competitive Integrity Policy and therefore, could not be disciplined under said policy.

Goodell argued that his suspension of Brady was not based on Brady's violation of the Competitive Integrity Policy, but rather, was based upon Brady's violation of the CBA which prohibits players from engaging in any conduct that is "detrimental to the integrity of, or public confidence in, the game of professional football." CBA Art. 46 §1(a). However, Judge Berman rejected this argument on the grounds that there was a specific disciplinary policy in place for tampering with equipment - the $5,512 fine set forth in the Players Policies. The fine set forth in the Players Policies for tampering with equipment could not be overridden by a more general policy addressing conduct detrimental to the game. Overriding the specific policy for tampering with equipment would provide even less notice to the players and render the fine in the Players Policies meaningless.

Judge Berman also found that Goodell improperly denied Brady the opportunity to examine the co-lead investigator for the "independent" Wells report - Jeff Pash - who reviewed and edited the investigatory report which Goodell relied upon for his decision. Goodell knew that his decision was likely to be challenged.  So, why wouldn't he have erred on the side of complete fairness to Brady and allowed him to examine his accuser? What was the harm to the NFL in letting Brady's attorneys' examine Pash?

Goodell was also found to have improperly denied Brady equal access to the investigative files generated during the "independent" investigation, which included unedited witness interview notes. The Court held that without the unedited interview notes, Brady was unable to fairly cross examine the testimony of the investigators at the arbitration hearing.  Again, knowing that his decision would be heavily scrutinized, why didn't Goodell err on the side of caution and provide Brady with the unedited interview notes?

The fact that arbitration decisions are rarely overturned illustrates just how troubled Judge Berman was with Goodell's handling of this matter. In such a high profile matter for the league, the fact that the Court found that the proceedings were fundamentally unfair on numerous grounds will require Goodell to answer a lot of tough questions as to whether he is capable of handling the league's disciplinary issues.

If you have any questions about this Alert, please contact Securities Litigation partner Douglas Hirsch at 212.573.6670.


Cheryl Spratt