Attorneys for the league will attempt to convince the judges that Berman should not have reversed the decision by NFL Commissioner Roger Goodell, who upheld the suspension of the four-time Super Bowl-winning quarterback for the New England Patriots on appeal. Goodell is empowered to hear and resolve such appeals under the terms of the league’s collective bargaining agreement. But the NFLPA convinced Berman that the process followed by the league during its investigation and appeals process was flawed.
“The issues that are in play here were narrowed by Judge Berman’s ruling,” said Gabriel Feldman, the director of the sports law program at Tulane University. “This will focus on whether the ruling was justified or whether Judge Berman failed to give proper deference to the league’s process and the commissioner’s finding. This is the next step, and I think both sides will hold tight to what they’ve been arguing.”
There has been no indication that Brady and Goodell plan to be on hand in the courtroom Thursday. A decision is expected in a few months. Whichever side loses at this stage of the legal process can appeal to the full appeals court, and then to the U.S. Supreme Court.
“The Court is fully aware of the deference afforded to arbitral decisions, but, nevertheless, concludes that the Award should be vacated,” Berman wrote in his ruling. “The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four-game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL Executive Vice President and General Counsel Jeff Pash; and (C) denial of equal access to investigative files, including witness interview notes.”
Feldman said of the NFL’s chances of prevailing before the three appeals-court judges: “I’d say it’s the same chance as it was at the lower level. The underlying question is the same. At the heart, it’s the same issue. There’s no obvious answer. That’s why they have continued to pursue it in the courts.”
Berman’s ruling allowed Brady to play a full 2015 season. He appeared to be the league’s most valuable player front-runner in the early stages of the year and the Patriots got off to a 10-0 start. But injuries to the players around Brady on offense, particularly to the members of his offensive line, plagued the Patriots as they lost four of their final six regular season games and squandered two chances to wrap up the No. 1 seed in the AFC playoffs. They ended up playing the AFC title game on the road in Denver and lost to the Broncos, who went on to win the Super Bowl.
“That is not an individual player issue,” Goodell said of the NFL’s appeal at his annual state-of-the-league news conference two days before the Super Bowl. “This is about the rights we negotiated in our collective bargaining agreement. We think they are very clear. We think they are important to the league going forward and we disagree with the district judge’s decision. We are appealing that, which is part of the legal process…. We’ll let the outcome be dictated by the appeals court. When it happens, we’ll deal with it then.”
Goodell declined to say then whether the NFL would enforce Brady’s four-game suspension next season if it prevails in its appeal.
“I think at the end of the day the league believes this goes to the heart of the integrity of the sport,” Feldman said in a phone interview this week. “I do think this is about much more than the suspension from the league’s perspective. It is about protecting the integrity of the collective bargaining agreement. They want to avoid outside interference and they want to avoid second-guessing by federal judges.”
The league, in the DeflateGate aftermath, performed random checks of the air pressure in footballs at games league-wide this past season but did not release the results, other than Goodell saying no violations of NFL rules were discovered.
DeMaurice Smith, the executive director of the union, said during Super Bowl week that he was less concerned about the air-pressure data than about the outcome in court.
“I think the issue for the union is to continue to defend the player and prepare for the Second Circuit hearing,” Smith said then. “Issues of PSI and how they collected it and what kind of job that they’ve done is up to them. If we think the information is important, at some point we’ll demand it. But the process that we’re in right now is fighting and vindicating the collective bargaining agreement.”
The return to court comes with the league and union negotiating potential changes to the sport’s system of player discipline and Goodell’s role in it. People familiar with the deliberations have said that gradual progress is being made and a deal might be within reach. The union is seeking independent arbitration of discipline imposed by the NFL in cases under the sport’s integrity-of-the-game rules, such as Brady’s, and under the personal conduct policy.
Some on the players’ side say they wonder why the league has continued to press the issue in court and is risking, in their view, further negative publicity and perhaps an even more damaging legal setback with broader implications than Berman’s decision.
“There’s always some risk,” Feldman said. “But courts are charged with deciding narrow issues before them. The higher risk [for the league] is that it will become a Second Circuit precedent.”