Friday, August 14, 2015

Deflategate Continued

If Brady’s brief is a 100-foot view of the case, the NFL’s brief is a 10,000-foot view. Brady makes many nuanced arguments about the propriety of his suspension, but the NFL’s brief can be summarized in one sentence: The CBA gives Goodell broad discretion to both interpret the CBA provisions and punish players and Goodell properly exercised that discretion.

Photo courtesy of AP/Ghanbari
The NFL doesn’t want the judge to get into the nitty gritty of the case, so it hammers the reader with the collectively-bargained-for nature of the CBA and reminds the reader that the standard of review is extraordinarily narrow. The terms Collective Bargaining Agreement and CBA appear nearly 50 times in the NFL’s 15-page brief. That’s not a coincidence—the NFL wants to remind the judge that this case comes down to the CBA provisions that give Goodell exceptionally broad power to mete out discipline.

The NFL argues that Brady wants is for Goodell to have interpreted the CBA differently, but the court’s review is extremely deferential to the arbitrator (here, Goodell) and is one of the “narrowest known to law”  (a quote from a Supreme Court case). This is an excellent use of helpful language from binding authority. And the NFL makes good public policy arguments: arbitration provisions exist to minimize in-court legal disputes, and the CBA’s appeals process “accords with Congress’s desire for parties to settle their labor disputes privately through final and binding arbitration.”

The NFL continues by touting the thoroughness of the Wells investigation and report and of  
Ted Wells
Photo courtesy of
Goodell’s decision-making process. The NFL describes the “months-long investigation” that resulted in a “thorough and public report” of 139 pages. It notes that Brady was represented by multiple counsel at the “extensive” arbitration hearing, and that Goodell “carefully” considered Brady’s arguments but rejected them based on his assessment of the evidence and interpretation of the CBA.

Brady argues that he was improperly disciplined without notice under somewhat obscure policies governing player equipment and competitive integrity. But the NFL counters that Brady was actually disciplined under the extraordinarily broad provision in the CBA permitting the NFL to discipline players for “conduct detrimental” to the League. Rather than delve into details of the many NFL policies that govern player conduct, the NFL cursorily dismisses each of Brady’s notice arguments with the conclusion that the discipline occurred under the broad “conduct detrimental” rule.

This argument (or lack thereof) may come back to bite the NFL. According to the Wells report itself, the Well investigation was conducted pursuant to the competitive integrity policy. If Brady’s argument that the competitive integrity policy does not apply to players is correct, the NFL may be in trouble.

The Deflategate saga continues. Oral argument is scheduled for August 19, though the judge has strongly encouraged the parties to settle the case, and settlement talks are ongoing. Given the speed with which the judge has acted, I think it likely that a written opinion will come down quickly.

Happy Friday!

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