CONTENTS INTRODUCTION I. DEFLATEGATE DECISION A. Wells Investigation and Disciplinary Letter B. Arbitration II. VACATION OF DEFLATEGATE DECISION A. Legal Standard B. Legal Analysis 1. Failure to Provide Notice 2. Improper Denial of Opportunity to Examine Pash 3. Improper Denial of Access to Investigative Files CONCLUSION INTRODUCTION
In National Football League Management Council v. National Football League Players Association (Deflategate), (1)(presiding Judge Richard Berman issued a strong rebuke of NFL commissioner Roger Goodell's decision to uphold a four-game ban of New England Patriots quarterback Tom Brady for his alleged involvement in a ball deflation scheme. (2) Using an assembly of past NFL arbitration appeals decisions, Judge Berman ruled that Goodell's suspension of Brady for four games violated the principles of fairness that underlie the Federal Arbitration Act and vacated the discipline imposed on Brady. (3) Judge Berman stated that Goodell's decision was "premised upon several significant legal deficiencies," and, even with the deference afforded to arbitrators, Berman ruled Goodell's arbitration decision fundamentally unfair. (4) The arbitration and subsequent vacation of the decision appears to be the catalyst for a discussion that has been in the making since 2011, (5) when the NFL Collective Bargaining Agreement (CBA) granted more power to the NFL commissioner than ever before. (6)
It is easy to dismiss the decision as the conclusion of an over-reported story that relates to an over-reported league, but Deflategate and the facts surrounding the case provide unique insight into the tensions that exist between the NFL's commissioner, owners, the players' union, players, and fans. Most notable about Judge Berman's opinion is its evisceration of Goodell's behavior as arbitrator, (7) a power that the most recent CBA expanded in 2011. (8) Goodell's authority does not only reach household name players. He has the authority to punish and deprive the due process rights of all NFL players, (9) many of them making little more than the minimum salary (10) in a league with a very short career span. (11) The general application of Judge Berman's opinion may be important in future NFL cases. Additionally, decisions that reduce the power of the NFL commissioner or narrow the scope of the CBA promote discussions between league officials and union officials, which helps to provide notice to players and promotes positive player activity outside of the sport. Finally, creating the opportunity for discussion between the players union and NFL management allows the public to become engaged and provide input that may affect the historically secretive league in positive ways.
Wells Investigation and Disciplinary Letter
The New England Patriots, a perennial NFL powerhouse since 2001, played the Indianapolis Colts in the AFC Championship Game on January 18, 2015. (12) During the game, the Colts requested that NFL officials inspect the footballs used by the Patriots because a Colts player and Colts staff member reported that an intercepted ball appeared to be under-inflated. (13) As a result, at halftime, members of the officiating crew tested the air pressure of eleven of the Patriots' game balls and found that all of them were underinflated, in violation of NFL rules. (14) Five days later, the NFL announced that Theodore Wells and his law firm would lead an investigation with the involvement and cooperation of NFL General Counsel, Jeff Pash. (15)
The product of the investigation was a 139-page document, most often referred to as the "Wells Report," with an additional one hundred pages of scientific evidence designed to disprove the claim that the ball deflation was natural.16 The Wells Report was released to the public on May 6, 2015.17 The Wells Report concluded that: 1) Jim McNally and John Jastremski, both Patriots equipment staff members, deliberately released air from footballs, after the NFL official approved the inflation levels; and 2) Brady, "more probabl[y] than not ... was at least generally aware of the inappropriate activities." (18)
On May 11, 2015, NFL Executive Vice President Troy Vincent mailed a disciplinary letter to the New England Patriots organization. (19) In the letter, Vincent accepted the findings of the Wells Report and punished the team for a violation of the NFL's Policy on Integrity of the Game and Enforcement of Competitive Rules ("Competitive Integrity Policy"). (20) Vincent fined the club $1 million, stripped the team of two future draft picks, and suspended Jastremski and McNally from equipment supervision. (21)
On the same day, Vincent mailed a similar disciplinary letter to Brady. (22) Vincent suspended Brady for four games, citing the Wells Report's finding of the quarterback's general awareness, in addition to Brady's "failure to cooperate fully and candidly with the investigation," and Brady's inconsistent testimony. (23) Vincent noted that Goodell authorized him to inform Brady of the discipline, and Goodell's authority was exercised under Article 46 of the CBA. (24)
Brady submitted an Article 46 arbitration appeal of the NFL's disciplinary decision through the National Football League Players Association (NFLPA). (25) Robert Kraft, who owns the Patriots, did not appeal. (26) Goodell appointed himself arbitrator of the hearing, as permitted by Article 46 of the CBA. (27) Brady and the NFLPA sought recusal of Goodell, arguing that he could not fairly arbitrate a matter related so intimately to him. (28) Goodell denied the request. (29) Additionally, Brady requested production of all documents used to draft the Wells Report and Pash's testimony regarding his involvement in the creation of the Wells Report. (30) Goodell denied both requests, deeming them cumulative. (31) He explained that only the Wells Report was used to make the disciplinary decision and that the NFL presented all the documents used to make conclusions in the Wells Report, making any further evidence unnecessary. (32) The NFL also claimed that Pash was not important enough to the investigation to warrant compelling his testimony. (33)
On June 23, 2015, the arbitration hearing was held. (34) The same law firm that drafted the Wells Report represented the NFL at the hearing. (35) Goodell issued the final decision on July 28, 2015. (36)
The fourth section of Goodell's decision addressed Brady's awareness of tampering with footballs. (37) Goodell observed that Brady spent a significant amount of time on the phone with Jastremski in the days following the AFC Championship Game, which was uncharacteristic of Brady and Jastremski's relationship before that point. (38) Goodell threw all of Brady's justifications for the phone conversations out stating, "The sharp contrast between the almost complete absence of communications through the AFC Championship Game and the extraordinary volume of communications during the three days following the AFC Championship Game undermines any suggestion that the communications addressed only preparation of footballs for the Superbowl." (39) Further, Goodell rejected McNally's arguments related to texts recovered by the Wells Report investigators, including arguments that a text discussion between Jastremski and McNally about "stress" actually referred to selling Patriots merchandise and texts between Jastremski and McNally about Brady's passer rating being deflated were taken out of context. (40) In rejecting all the arguments, Goodell stated, "[T]he available electronic evidence, coupled with information compiled in the investigators' interviews, leads me to conclude that Mr. Brady knew about, approved of, consented to, and provided inducements and rewards in support of a scheme ... [of tampering with] game balls." (41) Goodell then addressed Brady's cooperation with the investigation. (42) Brady failed to turn over the cellphone he used during the time the deflation activities allegedly occurred because he destroyed the cellphone before investigators spoke with him. (43) Brady argued that he always destroyed former cellphones. (44) Goodell rejected this argument because Brady had produced cell phones for his personal investigation that he had owned prior to the cellphone that he had destroyed. (45) Additionally, Goodell noted that the date of destruction, which appeared to be the same day Brady spoke with Wells Report investigators, was troublesome. (46) Goodell ruled that Brady failed to cooperate with the NFL and the appointed investigators, then explained, "[T]he NFL is entitled to expect and insist upon the cooperation of owners ... and players in a workplace investigation and to impose sanctions when such cooperation is not forthcoming, when evidence is hidden, fabricated, or destroyed, ... or when individuals do not provide truthful information." (47) In sum, Goodell stated:
The evidence fully...