“A complete defeat for the NFL”


By Clark Judge

Talk of Fame Network

Shortly after Tom Brady scored a decisive victory over the NFL Thursday, the league office announced it would appeal the verdict – in essence, putting Brady and Co. on notice that this is far from over. And it might be. But there is no sugar-coating what went down Thursday.

The NFL … and Roger Goodell … got hammered. Tom Brady was the hammer, and Roger Goodell was the nail.

So now what? Well, that’s why I call on Geoffrey Rapp, the associate dean for academic affairs and Harold A. Anderson professor of law and values at the University of Toledo’s College of Law. He’s impartial, he’s smart and he’s almost always on target. I want to know how he views the decision, where this case goes next and what the league’s chances are of winning on appeal.

Roger Goodell, you better sit down. You won’t like what you’re about to hear:

Q: What is your reaction to the decision? People told me it was a slam dunk for the league because it wasn’t in Judge David Doty’s court. And they were right: It was a slam dunk. Only not how they imagined.

 Rapp: “The decision was a complete defeat for the NFL. It would be hard to imagine how it could have gone worse for Roger Goodell and the league.  The judge clearly wanted the parties to settle, and it seems they may have gotten close. But we’re hearing that the NFL wouldn’t budge on an admission of responsibility of some  kind, and Brady’s team wasn’t willing to go there.

“Among the striking features of the opinion was how foreign the judge found the NFL’s disciplinary process in this case.  The judge describes the idea of ‘notice’ – the warning a person has of the likely consequences of misconduct – as fundamental to the CBA and to the American legal system.  The process employed by the NFL was completely alien to a judge schooled in the rules and procedures of this country’s approach to resolving disputes.  Policies were conflicting and unclear, investigations conducted by parties too close to the key decision makers, and the judge couldn’t find a way to accept the NFL’s approach.  While it’s rare for arbitration decisions to be overturned in court – there’s a strong policy favoring upholding them as a product of the agreed upon dispute resolution process between contract parties – the judge found this to be an instance in which judicial intervention was appropriate.

“Another thing that stands out in the opinion is the judge’s lack of deference to the sweeping powers of a commissioner to sanction conduct ‘detrimental’ to football.  Ever since the post-Black Sox creation of the MLB commissioner position filled by Kenesaw Mountain Landis, sports league commissioners have been viewed as benevolent despots – not just in baseball. This decision, following on the heels of other defeats for the NFL and Goodell, calls that vision of the commissioner’s office into doubt.  The judge doesn’t think Goodell was particularly ‘benevolent,’ and certainly doesn’t seem to accept the idea that dictatorial power is appropriate in an industry characterized by unionized labor relations.”

Q: What are the league’s chances of winning on appeal and, if you were representing them, would you recommend that course of action? Also, how long could an appeal take?

Rapp: “The league will not likely be able to stop Brady from taking the field.  There’s simply no actual harm to the NFL from the judge’s decision remaining in force during the period of appeal.  This isn’t a death penalty appeal or a decision ordering a break-up of a monopoly that can’t be undone later.  If we find ourselves all the way before a 2nd Circuit appellate panel, there are certainly reasons to think the appellate court might reverse the lower court’s decision on the law.  But since the court reserved ruling on some of the issues on which Brady could have won – like where Goodell lacked impartiality – the result of an appellate victory for the NFL would likely be to send the case back down to Judge Berman to decide those issues.  So there wouldn’t be a clean victory for the NFL even if it wins on appeal, which could certainly take months.

“In addition, some aspects of the judge’s decision are rulings of fact, on which the appellate court is likely to defer to the lower court.  Appellate courts look at whether the wrong legal standard has been applied.  Here, the judge has found that Brady lacked notice and was denied access to investigators. These are fact-based rulings on which the appellate court would likely defer to Judge Berman.  While one could disagree with the judge’s reading of facts, that’s not what appellate courts do.”

Q: What are the chances of this going all the way to the Supreme Court? 

Rapp: “I don’t think that’s likely.  After the dust settles, I think the NFL will want to move on.  Moreover, the judge’s language about ‘conduct detrimental,’ which, as I’ve said above, turns our traditional view of commissioner authority on its head, creates a real risk for the NFL.  If appellate courts – or the Supreme Court – agree that this concept is problematic, taking the case to the Supreme Court could result in a precedent applicable around the country that the NFL would really not want to live with.  While Goodell and the league seem to have been boxed in or pressured by some owners to taking the uncompromising position they’ve taken so far, the owners ultimately are business people who know that losing this case a few more times just isn’t good for their product.”

Q: What are the chances of a settlement before we get to another appeal?

Rapp: “At this point, there’s little reason to expect Brady to settle.  He’s had a near complete victory, ensured his legacy, and even if the case gets reversed in some part months or years later, he will have won where it mattered.  While I think he probably would have accepted a fine of some kind in order to get out of the suspension, there’s no reason for him to do so now.”





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  1. Rich Quodomine
    September 5, 2015

    I think the biggest thing the judge pointed out, from this fan’s perspective, is that the CBA is de facto flawed from the go when it came to discipline. The players gave Goodell powers, and at the time, there was a rash of poor player behavior. I remember people calling Goodell “The Hammer”. While I think most fans approve of pretty hefty penalties for criminal behavior, marginally deflated footballs isn’t all that much an issue for them, even if it’s actually on-field behavior.

    Yes, the Commish is getting the smack down. Yes, Deflategate is lame and never needed 4 games – 1 and some fine would do, along with some “We’ll exercise better discipline” or similar. The NFL went for broke and instead just went broke. But I think there’s an undercurrent here: Roger Goodell has 32 bosses – if a majority of them had said “Pull back, we can’t win this one” – he would have done so. Instead, he went full bore. What’s that say about the other 31 owners? They had to say something to the league office. Ultimately, there’s jealousy over the Pats’ success, and dislike over perceived cheating over the past 10 years between videotapes and deflated footballs. The Patriots have played around the margins for years. These owners are successful men and women and I suspect resent losing to people they feel “cheated”. In what is only a guess, this resentment clouded the owners’ judgment over a fairly small incident. They couldn’t put it into perspective of the actual crime. And now, as Brady put it, “everyone lost”. He’s right – everyone feels he cheated, but the NFL couldn’t get the punishment right because it’s whole line of thinking is wrong.

  2. […] the NFL chooses to prolong its case against Brady on appeal, which shows that turning the page and starting anew, which is advised by many of my PR peers, […]

  3. Harrison A Fitch
    September 26, 2015

    In 47 years as a trial lawyer and law professor, I have never seen any arbitration process remotely resembling the nonsensical process the NFL and the NLPA “negotiated” as part of the CBA.

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