A great deal of ink and cyberspace have been devoted to DeflateGate, which is far and away the biggest storyline of the offseason. Some pieces have applauded the Wells Report and the punishments levied against the Patriots and Tom Brady, while others have condemned the report’s alleged flaws and have accused the league of jumping to conclusions and “overreacting.” Mike Florio of Pro Football Talk, while he does not take a general stance on the scandal in his latest piece, does point out that commissioner Roger Goodell has injected unneeded confusion into Brady’s appeal with his recent comments.
Generally speaking, when a losing party notes an appeal to a higher court, the issue to be decided on appeal determines the standard of review that the higher court will apply. Sometimes, the court will apply a “de novo” standard, which essentially means that it ignores the lower court’s ruling entirely and considers all the evidence and arguments anew. But since Brady’s suspension stems from Article 46 of the labor deal, his appeal will be decided under an “arbitrary and capricious” standard, which means that the suspension will be upheld unless it was made on improper grounds or without any consideration of the relevant circumstances. Such a standard obviously provides a great deal of deference to the ruling of the lower tribunal, and since Goodell, for all intents and purposes, was the lower tribunal, one would think that the suspension would be affirmed.
However, the commissioner did cloud the matter when he said the following:
“We have a process here. It’s long established. I look forward to hearing directly from Tom. If there is new information or there’s information in helping us get this right, I want to hear directly from Tom on that.”
As Florio writes, an appellate tribunal reviewing an issue under an arbitrary and capricious standard cannot consider any “new information.” The only information that matters is the evidence and arguments already on the record. Although Goodell was probably hoping to demonstrate that he will be as fair as possible in considering Brady’s appeal, his comments only serve to undermine a process that has already been widely criticized. If Goodell is, in fact open to hearing “new” information, Florio writes that Brady should “ask to re-open the investigation, allowing Wells to do whatever it is that he charged the NFL millions of dollars to do, and then giving [Troy] Vincent a chance to reconsider the punishment, with Goodell waiting to review the matter on appeal.” But since that will not be happening, Goodell has unwittingly handed his critics another arrow to stick in their quiver.