Author: Rory Parks

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.

Our recent poll asking if Tom Brady would be successful in getting his four-game suspension reduced showed that PFR’s readers are largely optimistic about Brady’s chances; nearly two-thirds of all voters said Brady would, in fact, get his reduction.

Ben Volin of The Boston Globe, however, is less optimistic. As Volin points out, if Brady is unsuccessful in appealing his suspension to the league, he will have the option to file a lawsuit in any state in the country alleging a violation of industrial due process. But after speaking with Shannon Liss-Riordan, a Boston employment and labor attorney, and Lester Munson, a longtime attorney and legal analyst for ESPN, Volin concludes that Brady is unlikely to prevail at either stage.

In order to get his suspension reduced, Volin writes that Brady must “beg for mercy,” but Brady, who has given every indication that he plans to fight his punishment to the bitter end, is unlikely to do much begging. Instead, he will use the appeal process to lay the groundwork for his eventual lawsuit. Meanwhile, commissioner Roger Goodell is unlikely to recuse himself as the appeals officer, as the league’s collective bargaining agreement (“CBA”) allows him to hear all appeals. According to Liss-Riordan, it is “really unusual is for one party to be able to appoint the arbitrator in the grievance appeals process,” but “somehow the players’ union let that provision get in there.”

So if and when Goodell upholds the suspension, Brady will file suit. The NFL Players’ Association has been successful in arguing cases in Minnesota before federal judge David Doty, but Doty is now on senior status and is no longer hearing cases. As such, Brady will file in Massachusetts in an effort to gain home-field advantage. He plans to argue that the league violated industrial due process in that Troy Vincent, who actually imposed the punishment that Goodell approved, is not allowed to dole out sanctions. Further, Brady will argue that Vincent is inherently biased, given his involvement on game day, that the Well Report is severely flawed, and that the punishment is unfairly harsh given the precedent the league has established.

Liss-Riordan, though, says Brady will be fighting a steep uphill battle. Unless Brady can show bias, he is unlikely to prevail in court, and as Liss-Riordan says, “it’s going to be pretty hard to vacate an arbitration award based on the arbitrator being biased if the CBA allows for the arbitrator to be an interested party.” Plus, even though the Wells Report has been criticized both within the Patriots organization and without, Munson believes the report was “very careful and very conservative” in its conclusions, and the NFL would have a strong counterargument to any “unfair punishment” claims that Brady could make. For instance, as Munson says, the NFL can reasonably argue that Brady “lied to the investigators, he obstructed the investigation, and he was guilty on the footballs. So they would say, those three things qualify him for the four-game suspension. I don’t see excessive punishment as a strong argument for Brady.”

Volin’s entire piece is worth reading, as it provides a straightforward but reasonably-detailed look at the next stages in the DeflateGate saga, a saga that at least a couple of experts believe will have an unhappy end for Brady.

There are several more DeflateGate links to pass along today, so let’s have a look:

• Ralph Vacchiano of the New York Daily News believes Goodell should, in fact, recuse himself from Brady’s appeal, a move that Vacchiano believes would help Goodell to rebuild trust.
• Mike Florio of Pro Football Talk passes along a 2006 New York Times article by Judy Battista, which revealed that then-Texans quarterback David Carr instructed ball boys to let a little air out of the Texans’ footballs before the team’s preseason game in Denver. Some may point to this article as evidence of the league’s alleged bias against Brady, as there was no public fallout from Carr’s admission. But Carr’s purported misdeeds came before a preseason game, not a playoff game, and as Florio writes, “the article isn’t entirely favorable to the ongoing cause of Patriots fans to prove that other teams did that which the Patriots insist they didn’t do.”
• Prior to his induction into the USC Athletics Hall of Fame yesterday, Raiders head coach Jack Del Rio said Brady’s punishment was an “overreaction,” just like the sanctions handed down to Del Rio’s alma mater in the wake of the Reggie Bush investigations.