Fans of unscrupulous professional football players and coaches often justify their heroes’ misbehavior with a now-classic sports adage: “If you ain’t cheatin’, you ain’t tryin’.” In the 1970s, for example, legendary Oakland Raiders owner Al Davis allegedly bugged locker rooms, watered down fields, and spied on other teams using a helicopter. Such extreme shenanigans are less prevalent in today’s NFL, but they still happen. And as superstar New England Patriots quarterback Tom Brady now knows, it helps a lot if you don’t get caught. And if you do, the Second Circuit has made even more clear the very high degree of deference afforded to arbitration awards. This decision serves as a stark (and, for Patriots haters, richly satisfying) reminder that courts have no business reviewing the merits of an arbitrator’s award.
During the second quarter of last year’s AFC championship game—i.e., a game that determined one-half of that year’s Super Bowl matchup—an Indianapolis Colts linebacker intercepted a Brady pass. Sensing that something was amiss, he turned the ball over to the Colts’ coaching staff. They determined that the ball was underinflated in violation of league rules, which require a minimum pressure of 12.5 psi. (Particularly in the cold, wet conditions in which the game took place, underinflated footballs generally are easier to grip, throw, and catch.) After the Colts alerted NFL officials to the problem, the League tested all of the game balls at halftime. Each of the four balls provided by the Colts tested within the permissible range. Each of the Patriots’ eleven balls tested below 12.5 psi. Uh oh.
Tom Brady Wins Round One in District Court
The NFL retained counsel to investigate the matter, which has since become known as “deflategate.” The investigation concluded that it was “more probable than not” that two Patriots equipment officials had improperly deflated the Patriots’ footballs before the game began, and—though the evidence was somewhat less clear on this point—that Brady had at least tacitly approved of the scheme. #ThingsTomBradyDoes As a result of the investigation, and under a collective bargaining agreement (“CBA”) between the NFL and the NFL Players’ Association, League Commissioner Roger Goodell decided to suspend Brady for the next season’s first four games. Brady appealed the decision, and a labor arbitration ensued. As was his right under the (very unusual) CBA, Goodell himself served as the arbitrator. Shortly before the hearing, it also came to light that, on the day of his interview with the NFL’s investigators, Brady destroyed his cell phone, which he previously had refused to make available for inspection. (We and the greater Boston area are confident he had a perfectly legitimate reason for doing so.) To absolutely nobody’s surprise, Goodell upheld Brady’s suspension.
Tom Brady, however, is not a quitter, and the matter didn’t end there. On his behalf, the NFL Players’ Association sued the NFL in federal district court to vacate the arbitration award. The district judge later vacated the award based on (1) “inadequate notice to Brady of both his potential discipline (four-game suspension) and his alleged misconduct,” (2) “denial of the opportunity for Brady to examine one of two lead investigators,” and (3) “denial [to Brady] of equal access to investigative files, including witness interview notes.”
The Second Circuit Reverses
On Monday, the Second Circuit reversed. The court began its analysis by observing that its role was limited to “ensur[ing] that the arbitrator was ‘even arguably construing or applying the contract and acting within the scope of authority’ and did not ‘ignore the plain language of the contract.’”
Its ruling also emphasized the broad authority that the CBA conferred on the NFL:
“[T]he players and the League mutually decided many years ago that the Commissioner should investigate possible rule violations, should impose appropriate sanctions, and may preside at arbitrations challenging his discipline. Although this tripartite regime may appear somewhat unorthodox, it is the regime bargained for and agreed upon by the parties, which we can only presume they determined was mutually satisfactory.”
Rejecting the district judge’s three grounds for vacating the award, the Second Circuit concluded that that the parties’ CBA—unorthodox as it was—gave Goodell “broad authority to deal with conduct he believes might undermine the integrity of the game,” that the CBA thus gave Brady adequate notice that he might be suspended for his misconduct, and that Goodell’s other decisions were firmly grounded in the CBA’s language. As crazy as Goodell’s multi-purpose role in the arbitration might sound, the parties had previously agreed to it.
Lessons for Employers
Even Patriots rivals can agree that the CBA gives Goodell extraordinary power. On Wednesday, New Orleans Saints quarterback Drew Brees lamented Goodell’s power under the CBA, which, he said, places Goodell in the position of “judge, jury, and executioner when it comes to all the discipline” and which has been a “black eye” for the NFL. Problem is, the NFL Players’ Association should’ve negotiated a provision that would require appointment of an impartial arbitrator if it thought having the Commissioner serve as the arbitrator would be problematic. The answer, as the Second Circuit has made clear, is not to look to the courts for help. Whether one is a Patriots fan (Ed) or not (Todd—Go Niners!), this decision underscores the high level of deference that courts afford to an arbitrator’s award. Even if you’re Tom Brady.