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Deflategate: Due Process and the Role of the National Football League Players Association By: Marissa Ditkowsky
If you watch the news or have even a mild interest in sports, chances are the term “deflategate” rings a bell. If it doesn’t, “deflategate” became the nickname for New England Patriots Quarterback Tom Brady’s alleged role in, or knowledge of, game football deflation in the 2015 American Football Conference Championship Game against the Indianapolis Colts. The questions presented in the “deflategate” case, formally known as Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, however, spanned far beyond the simple, “Did Tom Brady know about the deflation? Were the balls purposely deflated? Was Tom Brady directly involved?” While the NFL was directly responsible for independently investigating those claims, the questions presented to the federal court were predominantly procedural and contractual. Namely, the courts needed to address the question of whether the NFL and Commissioner Roger Goodell adhered to procedural requirements set out in the collective bargaining agreement (CBA) between the National Football League Players Association (NFLPA) and the NFL. Nat’l Football League Mgmt. Council, 820 F.3d 527, 536-37 (2nd Cir. 2016). The fundamental fairness of the investigation and due process in arbitration were also in question. Id. at 545. Hence, the National Football League Players Association (NFLPA)[i] played a major role in the recent “deflategate” proceedings. Even though Brady already served his four-game suspension, the issues discussed in the case are important in understanding the relationship between the NFL and its athletes, the future of disciplinary policies within the NFL, and the vital role the NFLPA plays in advocating for NFL athletes and in negotiating CBA provisions.
Through the NFL’s independent investigation, the NFL determined that it was more probable than not that New England personnel violated the Playing Rules.[ii] [iii] The NFL also determined that it was more probable than not that Brady was “at least generally aware of the inappropriate activities . . . involving the release of air from Patriots’ game balls.”[iv] After going through arbitration to dispute the punishment, and the affirmation of the four-game suspension as a result of the arbitration, the NFLPA and Brady challenged Goodell and the NFL on lack of notice, consistency of disciplinary action in comparable scenarios, denial of testimony of potentially key witnesses, and denial of access to investigation files. NFL Mgmt. Council, 820 F.3d at 537-38. In addition, the NFLPA and Brady noted that the investigation and arbitration were both unfairly completed. Id.
The NFLPA argued that the NFL’s four-game suspension was unprecedented and contrary to the 2011 CBA. According to the NFLPA, no player in NFL history had ever received a suspension for alleged football tampering. Brief for Appellees Nat’l Football League Players Ass’n and Brady at 9, Nat’l Football League Mgmt. Council, 820 F.3d 527 (2nd Cir. 2016) (No. 15-2801(L)). Furthering their defense, the NFLPA maintained that the CBA states that first offenses for equipment violations can only be punished with fines, the amounts for which were also collectively bargained. Id. at 9-10. In addition, the NFLPA claimed that the report did not find that Brady directly participated in or ordered any ball deflation. Id. at 11. The NFL relied on Brady’s failure to cooperate with the private investigation. Id. The NFLPA maintained that Goodell compared the equipment infraction to steroid use, which is subject to a four-game suspension, and he “substituted his own brand of industrial justice for the applicable bargained-for fine.” Id. at 3. The NFL is also required to provide notice of prohibited conduct and disciplinary actions under the 2011 CBA. Id. at 12-13. According to the NFLPA, Brady only received notice of the potential for a fine that he had deflated or known about the deflation of footballs; Brady received no notice of the potential for a four-game suspension. Id. at 46. The NFL also provided no notice that failing to provide electronic communications would result in disciplinary actions, as required by the 2011 CBA. Id. at 20.
The NFLPA and Brady also questioned the fairness of the independent investigation and the arbitration process. Paul, Weiss, the firm hired to conduct the investigation, regularly represented the NFL, and even acted as co-arbitration counsel for the NFL in defending Brady's four-game suspension. Id. at 19-21. The arbitration itself resulted in an unprecedented punishment based on evidence that did not directly link Brady to the deflation. The Wells Report only stated that it was “unlikely” that the Patriots’ equipment staff “would deflate game balls without Brady's knowledge and approval,” or his “awareness and consent.” Id. at 21. In the hearing phase, Goodell also denied testimony from NFL Executive Vice President and General Counsel Jeff Pash, who co-led the investigation with Paul, Weiss’ Tom Wells. Id. at 56-58. Furthermore, the NFL also failed to produce its investigative materials for Brady’s use at the arbitral hearing. Id. at 53-55. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) joined the NFLPA in its concerns and filed an amicus brief urging the Second Circuit to vacate Goodell’s disciplinary action against Brady. As the AFL-CIO stated, Goodell “failed to follow basic procedural fairness and acted arbitrarily as an employer seeking to justify his own disciplinary decision rather than as a neutral arbitrator considering an appeal.” Brief for the AFL-CIO as Amicus Curiae Supporting Respondents at 4, Nat’l Football League Mgmt. Council, 820 F.3d 527 (2nd Cir. 2016) (No. 15-2801(L)).
Following the trial, the district court ruled in favor of Brady and the NFLPA. The court held that the lack of notice, the denial of Brady’s motion to compel Pash’s testimony, and the denial to produce investigative files for Brady’s use at the arbitral hearing created issues of legality and general fairness. Nat’l Football League Mgmt. Council, 125 F. Supp. 3d 449, 463 (S.D.N.Y. 2015). However, the U.S. Court of Appeals Second Circuit reversed the district court decision, holding that Goodell acted within the scope of his authority based on the collective bargaining agreement. NFL Mgmt. Council, 820 F.3d 527 at 532. According to the 2011 CBA, the Commissioner was authorized to impose discipline for “conduct detrimental to the integrity of, or public confidence, in the game of professional football” broadly. Id. The court argued that as long as Goodell did not ignore the spirit or plain language of the CBA, it was not up to the court to decide whether the punishment was appropriate. Id. at 536-37. The court maintained that Goodell was within his discretion as an arbitrator on all counts. Id. at 532. Neither the NFLPA nor Brady will appeal to the Supreme Court of the United States. Joseph Zucker, NFLPA Announces it Won’t Appeal Tom Brady’s Deflategate Ruling to Supreme Court, Bleacher Report, Oct. 2, 2016, http://bleacherreport.com/articles/2667211-nflpa-announces-it-wont-appeal-tom-bradys-deflategate-ruling-to-supreme-court; Megan French, Tom Brady Announces He Will Not Appeal Deflategate Ruling to Supreme Court, US Weekly, July 15, 2016, http://www.usmagazine.com/celebrity-news/news/tom-brady-will-not-appeal-deflategate-ruling-w429427.
Both the NFL and NFLPA must comply not only with the CBA, but also the Wagner Act, also known as the National Labor Relations Act[v], and the Taft-Hartley Act, also known as the Labor Management Relations Act (LMRA).[vi] Although the LMRA prohibited unions from adopting unfair practices, such as coercion and charging excessive fees, the Act also outlawed pre-entry closed shop rules and limited secondary boycotts. The Act states: Industrial strife which interferes with the normal flow of commerce and with the full production of articles and commodities for commerce, can be avoided or substantially minimized if employers, employees, and labor organizations each recognize under law one another's legitimate rights in their relations with each other, and above all recognize under law that neither party has any right in its relations with any other to engage in acts or practices which jeopardize the public health, safety, or interest.29 U.S.C.A. § 141 (1947).
Although the Act appears neutral on its face, the Act, as noted by the Second Circuit, asserts a preference for private arbitration and limited judicial intervention in CBAs, assuming the acts of the arbitrator remain in the spirit of the CBA. NFL Mgmt. Council, 820 F.3d 527 at 536. The court stated that in its interpretation of the LMRA, it was not the court’s job to whether the punishment was appropriate. Id. at 536-37. Despite arguments about fundamental fairness and violations of the collective bargaining agreement, the court held that Goodell, at least arguably, acted within the scope of his authority within the CBA in comparing the knowledge of deflation to steroid use, concluding that Brady had participated in a scheme to tamper with game balls, not providing Brady with interview notes and memoranda from the investigation process, and in delegating disciplinary authority. Id. at 540-41, 542, 547, 548. This interpretation, however, unnecessarily provides an arbitrator, who inherently has more power than employees, with the benefit of the doubt.
The result of this case could potentially set precedent that paves the way for biased and fundamentally unfair arbitration processes, resulting in inappropriate disciplinary action and abuse of arbitration power for all employees, regardless of sector. This case is an attack on the power of CBAs negotiated by unions for the benefit of working people. Regardless of whether Brady was responsible or had knowledge of the deflation, the process by which the NFL handles its investigations directly impacts all NFL clubs and players. The NFLPA, of course, has a stake in that potential. The politics of fandom can be dividing, but when the NFLPA steps in, it can be certain that the potential precedent of a case could have a negative impact on the athletes of the sport as a whole, regardless of whether Brady had anything to do with or had any knowledge of the football deflation. Perhaps the NFLPA will fight to include more stringent due process policies for NFL-led investigations in the next CBA, but unfortunately, that will have to wait until the current CBA expires and the next CBA is negotiated for 2020.
[i] The National Football League Players Association (NFLPA) is a labor union representing the athletes of the National Football League (NFL). The NFLPA is the only player association that is currently affiliated with the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), which is a federation of unions across a number of professions and sectors. The NFLPA is responsible for collective bargaining to ensure players are receiving fair compensation and benefits, guarantee player safety, and protect players generally.
[ii] The NFL uses a preponderance of the evidence standard in determining guilt through its investigations. The same standard is used for civil litigation. Conversely, in criminal cases, circumstances must be proven beyond a reasonable doubt. Brief for Appellants Nat’l Football League Mgmt. Council, Nat’l Football League, and McGuirk at 22, Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 820 F.3d 527 (2nd Cir. 2016) (No. 15-2801(L)).
[iii] Brief for Appellants Nat’l Football League Mgmt. Council, Nat’l Football League, and McGuirk at 2, 13, 121, Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 820 F.3d 527 (2nd Cir. 2016) (No. 15-2801(L)).
[iv] Id. at 2, 122.
[v] 29 U.S.C. §§ 151-169 (1935).
[vi] 29 U.S.C. §§ 401-531 (1947).