In DeflateGate there has been a weird inversion: NFL Commissioner Roger Goodell set out to expose Tom Brady, and instead he has exposed himself and the entire league. It was at first baffling to watch Goodell commit such acts of overreach. It has since become merely revealing of a catastrophic arrogance. In going after Brady and the New England Patriots on such a flimsy premise as the inflation of footballs, Goodell has steadily etched out his real character and attitudes, and in doing so he has bared himself and the league to searing judicial review.
The NFL’s entire legal argument in the court of Judge Richard M. Berman over the past few weeks is that this commissioner’s powers are so unlimited that even a federal judge must bow to him. NFL attorney Dan Nash said on Goodell’s behalf during a hearing this past week, “The findings of the commissioner are entitled to deference.” Well, that’s rich. It was Goodell and the NFL who brought this idiotic case into Berman’s courtroom in the first place. And now they’re telling Berman he has no right to rule in it.
The Brady case teaches us a lot about labor laws and how the NFL regards itself as above them. It’s about basic procedural fairness, whether Goodell has the right to inflict a vindictive and capricious punishment on Brady based on no evidence at all — it’s not even clear the game balls in the AFC championship game were deflated by a few whiffs of air — simply because he wants to prove he can make the league’s best quarterback kiss his ring. If Brady can be treated this way, then so can you or any other employee. That’s the heart of the case and why it’s important.
The NFL has long relied on procedural law to cover up its corruptions. Under its collective bargaining agreement with the NFL Players Association, all arguments go to arbitration rather than to court, with the commissioner as the judge. Players surrender a certain amount of due process in favor of efficiency: Arbitration is expeditious and is meant to avoid, ironically, endless court cases. It’s also more secretive. Things tend to stay sealed. Judges historically have been extremely reluctant to overturn arbitration, even when there are errors in a case, because arbitration by its very definition is meant to keep matters out of court. That’s what Goodell and the NFL lawyers counted on.
What they didn’t count on was a judge who refuses to accept the premise that he is supposed to shut up and rubber stamp. And who has decided to pour some sunshine on the entire process and give us a delightful lesson in the labor principles at stake. Berman’s scathing questioning of the NFL in a hearing this week demonstrated that arbitration is not meant to preclude judicial review or to force an employee to surrender to the whims of power-crazed managers.
While Goodell has sweeping powers to issue player discipline under the CBA, Berman made it clear he does not have the right to willfully misstate and mislead, gin up phony investigations based on pseudo-science and then issue draconian four-game suspensions simply because he’s furious Brady and the New England Patriots don’t say, “All hail to the emperor.”
“There has to be some basic process of fairness that needs to be followed,” Berman said.
Time after time, Berman issued observations from the bench that made the NFL attorneys’ shoulders curl. He called the league’s lack of proof that anything was deflated in the AFC championship game “a conspicuous absence.”
Perhaps most embarrassingly, he publicly busted Goodell for his irrational twisting of highly equivocal evidence into the assertion that Brady masterminded an illegal “scheme” that was on par with steroids. “A quantum leap,” Berman scoffed.
There are narrow grounds for overturning arbitration, but this case appears to meet plenty of them. The judge can throw it out if he finds Brady’s rights were prejudiced by corruption, fraud or misconduct. Or if he finds Goodell was evidently partial or was arbitrary and capricious. Or if he finds that Brady wasn’t given proper notice of what he was accused of, so he could mount a proper defense.
It’s not a slam dunk that Berman will vacate Brady’s suspension, but he has already dealt the NFL so many humiliating public rebukes that it’s hard to see him ruling differently. He clearly believes this is a case of petty, martinet-like behavior and it doesn’t belong in court. As Houston-based attorney and NFL blogger Stephanie Stradley observes, “I don’t know what Judge Berman’s stylistic preferences are, but if I went to law school, got awesome grades, worked worked worked, went through the process to get named as a federal court judge, decided many actually important cases, and then was asked to make a decision in a case that should have been settled that is this profoundly dumb, I would torch the NFL in flames that would make Hades look like a refrigerator.”
The “why is he doing this?” question still lingers; Goodell’s motive in pursuing Brady so hard with such a weak case is the fascinating question. The answer seems to be based in personality, a vain self-conception and tone deafness that make him incapable of admitting mistakes or cutting his losses. He has staked his personal power and credibility on the legal argument that if he wants to suspend Brady for life and fine him a billion dollars, his authority still supersedes that of a federal judge, who has no right to interfere.
It’s also likely that Goodell pressed this case because he is so accustomed to getting preferential treatment and political cover in civic arenas. States, cities and most of Congress are such panting NFL fans that they are willing to put up with any amount of extortionist behavior from the league, which demands massive public funding for stadiums and all kinds of tax breaks or threatens to move franchises. The league has long behaved as if it’s entitled to special carve-outs, exceptions and protections simply because of its popularity. It’s used to operating with impunity and without federal interference, whether doling out painkillers in violation of Drug Enforcement Administration regulations or utterly ignoring OSHA requirements on reporting workplace injuries.
But for once, Berman has not provided the NFL with cover. Instead, he has highlighted this fundamental attitude by the NFL, that the league is so special that even federal law should be bent in favor of it. The NFL by Goodell’s definition is almost a separate country. It makes up its own interpretation of laws — those it doesn’t ignore altogether. It even makes up its own science. By acting like an emperor instead of a commissioner, Goodell has exposed himself and the entire organization as overripe for a slap-down by a strong federal hand.
For more by Sally Jenkins, visit washingtonpost.com/jenkins.
More Sally Jenkins columns on DeflateGate: