As Deflategate wore on, the lawyers representing Tom Brady forgot to do something essential. They forgot to argue their client’s innocence. Instead Jeffrey Kessler and the NFL Players Association got so lost in pushing their interpretation of the collective bargaining agreement and trying to trim the powers of Commissioner Roger Goodell that they failed to drive home the essential point: How can a player be suspended for “conduct detrimental” when there was no conduct to begin with?
To date, we are still looking for a single shred of credible evidence that any human hand deflated the footballs in that AFC championship game. Where is the conduct? Much less the conduct detrimental?
Somehow this point was missed in the many briefs and oral arguments. Consequently, three judges of the U.S. Court of Appeals for the 2nd Circuit missed it, too, ruling 2-1 in favor of the NFL and reinstating Brady’s four-game suspension. Even chief judge Robert A. Katzmann, whose water-clear dissent left Brady some faint hope, missed it. Katzmann believes Goodell indeed invented “his own brand of industrial justice,” and if the chief justice thinks so, then perhaps a full 2nd Circuit panel will too, should Brady seek a stay and appeal. If he does, this time around his lawyers should emphasize the only truly salient point of the entire case. As New York Law School professor Robert Blecker put it, “What happened to the deflate part of Deflategate?”
Regardless of whether Brady appeals, he and every other NFL player should now be on notice that their personal interests don’t necessarily overlap with the NFLPA and its lawyers. Arbitration is rough justice. The players must submit to it, via their collective bargaining agreement with the owners, but their individual rights become a bargaining chip for other concessions.
That’s fine, as long as they have a fair and honest commissioner. But the CBA gives the commissioner disconcertingly vague power to discipline them for “conduct detrimental,” and it’s a power Goodell has consistently abused like a third world tyrant. You can’t blame Kessler and the union for trying to make up for this in the courtroom, or for thinking that in Brady they had the ideal client to knock Goodell back for overreaching. But somewhere along the line their strategy became, in the words of Judge Barrington Parker, “hyper-technical” as they sought to parse Goodell’s powers under the CBA.
This simply left two of the three judges unpersuaded, to the point of irritability. Time after time in their written opinion, Parker and Denny Chin chided the NFLPA for making a bad deal, with sentences like these:
“There is simply no fundamental unfairness in affording the parties precisely what they agreed on.”
“If it is seriously believed that these procedures were deficient or prejudicial, the remedy was to address them during collective bargaining.”
“Arbitration is a matter of contract, and consequently the parties to an arbitration can ask for no more impartiality than inheres in the method they have chosen.”
In other words, the CBA is written so lousily that when it comes to Goodell’s powers, it effectively ties the hands of judges and prevents them from intervening even if they wanted to.
Arbitration is supposed to be extremely binding: The whole idea is to keep small complaints like this from cluttering the courts. Therefore when you bring a case before federal judges, you better have a damn good reason — and you better be prepared to demonstrate that reason. But these judges seem to be telling Kessler and the NFLPA that instead of demonstrating that reason, they did the one thing the court had no patience with: They tried to revise and rewrite the CBA through a court ruling. The remedy for a dissatisfied party, they wrote, “is not judicial intervention, but for the parties to draft their agreement to reflect the scope of power they would like their arbitrator to exercise.”
According to the judges, there is only one very narrow ground for overturning arbitration: if the arbitrator is “guilty of misconduct” and “violates fundamental fairness.”
Goodell was guilty of misconduct: This was the point to be hammered. Yet Kessler seemed reluctant to reargue any points of the case against Brady. He even tried to tell the judges that they weren’t supposed to reconsider the facts, only to consider the process and whether it was reasonable.
Yet facts and process are to a certain extent inextricable. As Katzmann’s dissent recognized, Goodell employed “a shifting rationale for Brady’s discipline.” Goodell strayed far from common sense and from any previous penalty for ball tampering, such as receivers using stickum. There was “a lack of any meaningful explanation in the Commissioner’s final written decision.” The punishment was “unprecedented and virtually unexplained.” Goodell’s powers are broad, but they shouldn’t be “limitless.”
Yet even Katzmann stopped short of acknowledging what really happened here: Goodell simply made things up as he went along. There is evidence that the Wells Report manufactured or twisted facts to make Brady seem guilty. And lately we have evidence that the NFL has suppressed information that might exonerate him. This season, the NFL spot-checked inflation levels of footballs, and then refused to make the data public. There is only one conceivable rationale for not releasing it, and that’s because it makes the specious Wells Report look even more specious, and supports the account of the Patriots and consensus of mainstream scientists: The deflation level of the footballs was because of cold, wet weather and the effects of the Ideal Gas Law.
There was no conduct. Much less detrimental conduct. If Brady appeals, this is the point of the case, not the vague language in a bad deal.
For more by Sally Jenkins, visit washingtonpost.com/jenkins.