Monday morning, on the 463rd day of its farcical lifespan, an undying scandal regarding the amount of air inside a football — and fundamentally about the authority wielded by the commissioner of the nation’s most powerful sports league — lurched one step away from the Supreme Court of the United States.
In doing so, the court cited — and, in effect, reinforced — the broad powers granted to NFL Commissioner Roger Goodell in the collective bargaining agreement between the league and the players’ union, a decision that could have implications on other sports negotiating future labor deals.
Brady had appeared to have beaten the rap and played an entire season — 18 games, playoffs included — before Monday’s ruling added another twist and breathed new life into “Deflategate,” an expansive and wholly American ordeal that refuses to slink away. If Brady chooses to continue the fight, as the NFL Players Association suggested he would, he has limited recourse. He could request a rehearing by asking for a review by the full panel of 2nd Circuit judges. Or he could appeal to the nation’s highest court to sort out 15 months of litigation between the NFL and its most prominent player of the era.
Late last summer, a U.S. District Court judge vacated Brady’s suspension on the grounds of fundamental unfairness. Monday’s reversal by the appellate court set aside the details of the case — PSI numbers, destroyed cellphones, application of the Ideal Gas Law, etc. — and centered on what always has been the heart of the case: how much authority Goodell has over player discipline.
Circuit Judge Barrington D. Parker sided with the NFL, owing to the “deference” courts show in disputes concerning collective bargaining. The broad language in Article 46 of the league’s CBA grants Goodell the right to investigate rule violations, mete out punishment and arbitrate player appeals.
“Even if an arbitrator makes mistakes of fact or law, we may not disturb an award so long as he acted within the bounds of his bargained-for authority,” Parker wrote in the ruling. “Here, that authority was especially broad.”
Parker also wrote that Goodell’s power to act as police, judge and jury in disciplinary matters “may appear somewhat unorthodox.” But because the NFLPA agreed to Article 46 during negotiations in 2011, the judge determined Goodell had proper authority to suspend Brady and uphold the ruling upon Brady’s appeal — which was heard by Goodell himself.
“We are pleased the United States Court of Appeals for the Second Circuit ruled today that the Commissioner properly exercised his authority under the collective bargaining agreement to act in cases involving the integrity of the game,” an NFL spokesman said in a written statement. “That authority has been recognized by many courts and has been expressly incorporated into every collective bargaining agreement between the NFL and NFLPA for the past 40 years.”
“The NFLPA is disappointed in the decision by the Second Circuit,” an NFLPA spokesman said in a written statement. “We fought Roger Goodell’s suspension of Tom Brady because we know he did not serve as a fair arbitrator and that players’ rights were violated under our collective bargaining agreement. Our Union will carefully review the decision, consider all of our options and continue to fight for players’ rights and for the integrity of the game.”
Brad Snyder, a University of Wisconsin law professor, called it the most significant ruling in regard to the power of sports commissioners since the 1970s, when a federal court upheld Major League Baseball Commissioner Bowie Kuhn’s decision to prevent a trade by Oakland Athletics owner Charlie Finley in the best interests of baseball. Kuhn held the power then, like Goodell now, owing to language in the CBA.
"[MLB Commissioner] Rob Manfred has to be smiling today, and [National Basketball Association Commissioner] Adam Silver has to be smiling today," Snyder said. "Whatever authority they have in their CBA was just affirmed."
The ruling also may have heightened the importance of looming negotiations between MLB and the NBA and the sports’ respective players unions over expiring CBAs. NFLPA members who negotiated the current CBA insist previous NFL commissioners held power commensurate with Goodell, but did not wield it as autonomously as Goodell. Still, with the language of Article 46, they handed Goodell the authority cited in Monday’s decision.
“The players got what they deserved here, because they gave Goodell the final say on decision-making,” Snyder said. “It’s a message for the NBA and the MLB players, both of whom have huge CBA agreements coming up. They better have good representation.”
Alan Milstein, a lawyer who has litigated sports cases and followed Deflategate closely, blasted the latest Brady ruling. He agreed with District Court Judge Richard Berman, who ruled that fundamental unfairness on Goodell’s behalf overrode collectively bargained authority.
“The 2nd Circuit’s decision is blind to the reality of the facts in this case reinstates an unjust decision by a clearly biased arbitrator,” Milstein said.
Berman originally overturned the suspension for three principle reasons: He did not have adequate notice that tampering with footballs could lead to suspension, Goodell did not require NFL lawyer Jeff Pash testify in Brady’s appeal and the league did not grant Brady’s side access to its investigative notes.
“We conclude that each of these grounds is insufficient to warrant vacatur,” Parker wrote.
About 15 months after league officials began investigating Brady for indecently tampering with footballs to improve his grip against the Indianapolis Colts on Jan. 18, 2015, Deflategate finally may be drawing its final breaths. Legal experts view an full-panel review or the Supreme Court taking the case as unlikely, although Milstein said the high-profile nature of the case could increase the chances.
For now, Brady stands to lose, even after it appeared he had won, even after he led the Patriots to a Super Bowl title in 2015 and back to the AFC title game this year. He will lose based on the final words of the 2nd Circuit’s ruling before the conclusion: “Had the parties wished to restrict the Commissioner’s authority, they could have fashioned a different agreement.”
