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Media Alerts - National Football League Management Council et al. v. National Football League Players Association et al.
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April 25, 2016
  National Football League Management Council et al. v. National Football League Players Association et al.
Headline: Second Circuit Reverses District Court and Upholds Arbitration Award Suspending Patriots Quarterback Tom Brady for Four Games as Within the Broad Arbitration Powers of the NFL Commissioner's Office Under the NFL Collective Bargaining Agreement

Area of Law: Labor/Collective Bargaining/Arbitration

Issue(s) Presented: Whether NFL Commissioner Roger Goodell's decision to suspend Tom Brady for four games was a proper exercise of the Commissioner's broad discretion under the collective bargaining agreement.

Brief Summary: Following the 2015 American Football Conference ("AFC") Championship playoff game between the New England Patriots and the Indianapolis Colts, it was alleged that the Patriot's quarterback, Tom Brady, was involved in a scheme, coined "Deflategate" in the media, to deflate footballs below the permissible range (ostensibly making them easier to throw and catch). After an investigation, the National Football League ("NFL") suspended Brady for four games. Brady then requested arbitration under the parties' collective bargaining agreement and NFL Commissioner, Roger Goodell, served as the arbitrator. Goodell entered an award confirming the discipline and the parties sought judicial review. The United States District Court for the Southern District of New York vacated the award, holding that Brady had insufficient notice that his conduct could result in a suspension and that the proceedings deprived Brady of fundamental fairness.

On appeal, the Second Circuit majority reversed the lower court's decision, holding that the Commissioner properly exercised his broad discretion under the parties' collective bargaining agreement. The court found that the arbitration proceedings and decision met the minimum legal standards established by the Labor Management Relations Act and remanded with instructions to confirm the arbitration award.

To read the full opinion, visit:

Extended Summary: Following the January 18, 2015 AFC Championship Game between the Patriots and the Colts, during which officials found several of the Patriots game balls were inflated less than the permissible range, the NFL retained Theodore V. Wells, Jr. Esq. and the law firm of Paul, Weiss, Rifkin, Wharton & Garrison to conduct an investigation into possible impermissible ball tampering. A 139-page report (the "Wells Report), issued the following May, concluded that it was "more probable than not" that two members of the Patriot's equipment staff, Jim McNally and John Jastremski, had deliberately released air from Patriot game balls shortly after they were examined by game officials. On Patriots quarterback Tom Brady's role, the Wells Report concluded - based largely on text exchanges between the McNally and Jastremski referencing Brady and the fact that Brady and Jastremski spoke on the telephone for the first time in six months and met in the locker room on the day the investigation was announced - that it was "'more probable than not' that Brady was 'at least generally aware'" of McNally and Jastremski's actions" and found it unlikely the two men would have deflated the balls without Brady's "'knowledge, approval, awareness, and consent.'" The Wells Report also noted that Brady's failure to make electronic information (such as texts and emails) and documents available impaired their investigation.

Thereafter, on May 11, 2015, Brady was notified that Commissioner Goodell had authorized a four-game suspension under Article 46 of the collective bargaining agreement between the NFL and Player's Association (the "CBA") based upon the Wells Report. Article 46 authorizes the NFL commissioner to, "take disciplinary action against a player whom he 'reasonably judge[s]' to have engaged in 'conduct detrimental to the integrity of, or public confidence in, the game of professional football.'" Brady appealed his suspension and requested arbitration and Commissioner Goodell exercised his discretion under the CBA to serve as the arbitrator. The Players' Association, acting on behalf of Brady, filed multiple motions including seeking Goodell's recusal, requesting production of Paul, Weiss's internal investigation notes, and moving to compel NFL General Counsel to testify about his involvement in the Wells Report. Goodell denied the motions. Also about this time, it was revealed for the first time that Brady had instructed his assistant to destroy the cellphone he had used since early November 2014 on the same day Brady was to be interviewed by the Wells investigative team.

Following the arbitration hearing, Goodell issued a final ruling upholding the four-game suspension. In his ruling, Goodell drew an adverse inference that Brady's cellphone would have contained evidence inculpating Brady in the scheme, citing Brady's "deliberate effort" to prevent the investigators' access to information he had been asked to produce. The decision also likened Brady's conduct to that of a steroid user seeking a game advantage and concluded that a four-game suspension - the same penalty typically imposed for first-time steroid use - was, thus, an appropriate penalty.

Both parties then initiated actions in federal court; the NFL to confirm the arbitration award under the Labor Management Relations Act, and the Players' Association to vacate the award. The United States District Court for the Southern District of New York granted the Player's Association motion vacating the award. The district court based its decision on two grounds: (1) that Brady lacked adequate notice that deflation of footballs could lead to a four-game suspension because the applicable CBA provisions indicated fines would be imposed for misconduct; and (2) that Goodell deprived Brady of fundamental fairness by denying the motions to compel the NFL General Counsel to testify about his role in the investigation and to compel production of the investigative notes used to prepare the Wells Report.

The Second Circuit majority reversed the judgment of the district court and remanded with instructions that the arbitration award be confirmed. Describing the role of federal courts in reviewing arbitration awards as "narrowly circumscribed and highly deferential," the Second Circuit majority emphasized that it is not its role to determine if Brady participated in a scheme to deflate footballs or if he received the appropriate discipline. Rather, it is "simply [to] ensure that the arbitrator was 'even arguably construing or applying the contract and acting within the scope of his authority' and did not 'ignore the plain language'" of the CBA.

The Second Circuit majority rejected the district court's finding that Brady lacked notice that his conduct could result in a suspension, finding Article 46 gave Goodell broad authority to discipline Brady for conduct he believes "might undermine the integrity of the game" and that, at the very least, Goodell's interpretations of the governing provisions could easily withstand the standard on review that they be at least "barely colorable." The majority found Goodell was also within his discretion in drawing an analogy between Brady's conduct and steroid use. The majority further rejected the district court's finding that Brady was disciplined without notice for "general awareness of misconduct on the part of others," finding, instead, that the award made clear Brady was disciplined because he "participated" in the ball-tampering scheme and "obstructed the investigation" when he arranged for the destruction of his cellphone. Finally, the majority also found Goodell acted within his discretion in refusing to compel the NFL general counsel's testimony or production of the investigators' internal notes, because arbitrators do not need to follow strict evidentiary rules and the CBA mandated only that exhibits the parties will rely upon be exchanged.

In a dissenting opinion, Chief Judge Katzmann argued the district court's decision should be affirmed because Goodell changed the factual basis for the discipline by drawing an inverse inference from Brady arranging for destruction of his cellphone and, by setting out an unprecedented punishment, the Goodell acted beyond his authority and asserted his own 'brand' of justice, rather than that explicitly outlined in the CBA.

To read the full opinion please visit:

Panel: Katzmann, Parker and Chin

Argument Date: 3/3/2016

Date of Issued Opinion: 4/25/2016

Docket Numbers: 15-2801 (L), 15-2805 (CON)

Decided: Reversed and remanded with instructions to confirm the arbitration award

Case Alert Author:
Gavin Michael Strube

Counsel: Paul D. Clement (Erin E. Murphy, Michael H. McGinley, on the brief), Bancroft PLLC, Washington, D.C.; Daniel L. Nash, Pratik A. Shah, Stacey R. Eisenstein, Gregory W. Knopp & James E. Tysse, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C., on the brief, for Plaintiff¿Counter¿Defendant¿Appellant and Defendant¿Appellant.
Jeffrey L. Kessler (David L. Greenspan, on the brief), Winston & Strawn LLP, New York, NY; Steffen N. Johnson, Winston & Strawn LLP, Washington, D.C., on the brief; Andrew S. Tulumello, Gibson, Dunn & Crutcher, Washington, D.C., on the brief, for Defendant¿Counter¿Claimant¿Appellee and Counter¿Claimant¿Appellee.

Author of Opinion: Parker (for majority); Katzmann (for dissent)

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 04/25/2016 07:23 PM     2nd Circuit  

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