Brady played all of last season as the Patriots reached the AFC title game before losing at Denver to the Broncos.
NFL Commissioner Roger Goodell declined to say at his annual state-of-the-league news conference two days before the Super Bowl whether the league would enforce Brady’s suspension during the 2016 season if it prevailed in its appeal of Berman’s decision.
The ruling was made by a three-judge panel of the appeals court.
“We hold that the Commissioner properly exercised his broad discretion under the collective bargaining agreement and that his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness,” the court wrote in its decision.
One of the three judges, Robert A. Katzmann, dissented.
The NFL Players Association can appeal the ruling to the full appeals court.
If the ruling stands and the NFL enforces the suspension at the outset of the 2016 season, Brady would miss the Patriots’ opener Sept. 11 at Arizona and games at home Sept. 18 against the Miami Dolphins, Sept. 22 against the Houston Texans and Oct. 2 against the Buffalo Bills.
Goodell said at the Super Bowl that the league’s appeal was made in a bid to enforce its rights under the collective bargaining agreement.
“That is not an individual player issue,” Goodell said then. “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. I am not focused on it right now. I am not going to speculate on what we are going to do. Depending on the outcome, we’ll let the outcome be dictated by the appeals court. When it happens, we’ll deal with it then.”
The NFL issued a written statement Monday that said: “We are pleased the United States Court of Appeals for the Second Circuit ruled today that the Commissioner properly exercised his authority under the collective bargaining agreement to act in cases involving the integrity of the game. That authority has been recognized by many courts and has been expressly incorporated into every collective bargaining agreement between the NFL and NFLPA for the past 40 years.”
The union said it would review its options.
“The NFLPA is disappointed in the decision by the Second Circuit,” a written statement issued by the union said. “We fought Roger Goodell’s suspension of Tom Brady because we know he did not serve as a fair arbitrator and that players’ rights were violated under our collective bargaining agreement.
“Our Union will carefully review the decision, consider all of our options and continue to fight for players’ rights and for the integrity of the game.”
The league suspended Brady for his role in what the NFL concluded was a scheme by the Patriots to use improperly under-inflated footballs that were discovered after the first half of the AFC championship game against the Indianapolis Colts at the conclusion of the 2014 season. Goodell rejected the NFLPA’s appeal of the suspension on Brady’s behalf. Brady’s destruction of his cell phone, leaving it unavailable for league-appointed investigator Ted Wells, also became a significant issue.
The matter ended up before Berman after the league and union filed dueling lawsuits. Berman ruled last September in favor of Brady and the NFLPA, vacating the suspension.
“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 decision. “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.”
But the NFL appealed, and it was clear to some courtroom observers and legal analysts that the league had a chance to prevail when the appeals-court judges questioned Brady’s attorney, Jeffrey Kessler, more sharply than they did NFL attorney Paul Clement at a hearing in March.
Berman’s ruling last year came amid a string of successful challenges by the union to disciplinary measures taken by the NFL in cases involving Brady, Ray Rice, Adrian Peterson and Greg Hardy. Against that backdrop, some NFL owners seemed open to the possibility of allowing Goodell’s power in the player-disciplinary process to be reduced.
The league and union negotiated potential changes to system of player discipline and Goodell’s role in it. The NFLPA was seeking independent arbitration for players’ appeals of disciplinary measures imposed by the NFL under the integrity-of-the-game rules, as in Brady’s case, and under the personal conduct policy, as in the Rice, Peterson and Hardy cases. Currently the CBA empowers Goodell to hear and resolve such appeals.
DeMaurice Smith, the executive director of the NFLPA, said late last year that the two sides were having the right conversations to bring about a player-discipline accord, and he said at the union’s annual news conference during Super Bowl week he was cautiously optimistic a deal was possible.
Some observers raised the possibility that a player-discipline accord between the league and union could include a settlement on the Brady suspension.
But those negotiations later unraveled, and an arbitrator ruled that the NFL’s use of the commissioner’s exempt list to place players on paid leave with cases pending under the personal conduct policy was valid. The union had challenged that tactic via a grievance after the owners ratified the NFL’s modified personal conduct policy.
It is now unclear if the player-discipline negotiations will be revived. The union has said it will not agree to a new CBA without Goodell’s authority in player discipline being addressed. The current CBA runs through the 2020 season.
The Patriots will be without a first-round pick Thursday night in the NFL draft as part of their Deflategate penalties.
Brady’s backup, Jimmy Garoppolo, would be in the line to open the season in the Patriots’ lineup in place of Brady if he is serving his suspension. Garoppolo is the only other quarterback currently on the Patriots’ roster, which means the team may look to acquire another either during the draft or by signing a veteran free agent.