The news NFL fans have been waiting for all week was finally released this morning, and the news is good for Tom Brady, the Patriots organization, and their fans. Judge Richard Berman vacated the baseless four-game suspension handed down by Troy Vincent and upheld in appeal by Commissioner Roger Goodell, and he released a 40-page document explaining the reason for vacating Brady's suspension.
Berman had multiple reasons for vacating the suspension, but the main sticking point was the comparison of Brady' issue to steroid or HGH, both performance enhancing. He stated that:
"The Court finds that no player alleged or found to have had a general awareness of the inappropriate ball deflation activities of others or who allegedly schemed with others to let air out of footballs in a championship game and also had not cooperated in an ensuing investigation, reasonably could be on notice that their discipline would (or should) be the same as applied to a player who violated the NFL Policy on Anabolic Steroids and Related Substances."
Berman also took issue with NFL attorney Jeff Pash and his role in the Wells Report. The report, which was said to be "independent", was actually controlled by the league and edited by Pash himself. For months, the NFL stated that the investigation was being solely conducted by Wells and he would report his findings to the league, but with Pash having the final say on the report and the NFL not allowing Kessler to questions him in the appeal, Berman found that to be evasive.
Berman took a direct shot at Goodell with the opening statement of the Legal Standard:
"Although judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute at issue." Gilmer v. Interstate/Johnson Lane Com., IllS. Ct. (1991) (quoting Shearson/Am. Express Inc. v. McMahon, (1987)). "The deference due an arbitrator does not extend so far as to require a district court to countenance, much less confirm, an award obtained without the requisites of fairness or due process." Kaplan v. Alfred Dunhill of London, Inc.,(S.D.N.Y. Nov. 4, 1996)."
Another excerpt in regards to Goodell:
"A "principal question for the reviewing court is whether the arbitrator's award draws its essence from the collective bargaining agreement, since the arbitrator is not free to merely dispense his own brand of industrial justice." 187 Concourse Assocs. v. Fishman,(2d Cir. 2005) (quoting Saint Marv Home, Inc. v. Serv. Emps. Int'l Union, Dist.(2d Cir. 1997))".
"[A]s the proctor of the bargain, the arbitrator's task is to effectuate the intent of the parties. His source of authority is the collective bargaining agreement, and he must interpret and apply that agreement in accordance with the 'industrial common law of the shop' and the various needs and desires of the parties." United States v. Int'l Bhd. of Teamsters,(2d Cir. 1992 quoting Alexander v. Gardner-Denver Co., 1974))."
"It is the "law of the shop" to provide professional football players with advance notice of prohibited conduct and potential discipline. In In the Matter of Reggie Langhorne ("Langhorne"), Arbitrator Richard R. Kasher vacated the discipline of a player who had refused to take part in practice, holding that the player "was entitled at some time to be placed on notice as to what consequences would flow from his refusal to participate in ... practice. Any disciplinary program requires that individuals subject to that program understand, with reasonable certainty, what results will occur if they breach established rules."(Apr. 9, 1994). In NFLMC v. NFLPA (Ricky Brown)("Ricky Brown"), Arbitrator Michael H. Beck vacated a fine imposed upon a player for missing a mandatory weigh-in, and observed that "adequate notice is the fundamental concept in discipline cases." (July 16, 2010)".
Here is the money statement from the report:
"The Court is fully aware of the deference afforded to arbitral decisions, but, nevertheless, concludes that the Award should be vacated. The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL Executive Vice President and General Counsel Jeff Pash; and (C) denial of equal access to investigative files, including witness interview notes."
The NFL stood by one thing throughout this entire process- Article 46 of the Collective Bargaining Agreement. Article 46 gives the commissioner absolute power over suspensions and appeals, and the NFL's lawyers stuck to that main point throughout the case. Judge Berman didn't shy away from Article 46 at all, instead using it AGAINST the NFL in his ruling. As we discussed earlier, he also cites the Pash issue in this statement. Berman on Article 46:
"NFL precedent demonstrates that, in Article 46 arbitration appeals, players must be afforded the opportunity to confront their investigators. The Court finds that Commissioner Goodell's denial of Brady's motion to compel the testimony of Mr. Pash was fundamentally unfair and in violation of 9 U.S.C. § !O(a)(3). Given Mr. Pash's very senior position in the NFL, his role as Executive Vice President and General Counsel, and his designation as co-lead investigator with Ted Wells, it is logical that he would have valuable insight into the course and outcome of the Investigation and into the drafting and content of the Wells Report. It is also problematic to the Court that there was no specification by Goodell as to the ways Pash's testimony would have been "cumulative."
To translate- the only leg that the NFL had to stand on in this case was Article 46 of the Collective Bargaining Agreement, and Judge Berman just kicked that leg out from underneath them by using their own argument against them. For those of you interested, here is the entire 40 page document from Judge Berman. I would highly recommend reading it because it breaks everything down by the letter of the law, and also shows that the NFL truly screwed up as bad as possible throughout this entire process.
This thing got ugly and I firmly believed from the beginning that Brady and the Patriots were being treated unfairly, but because we live in the "gotcha" culture of 2015, people automatically assume a league like the NFL is telling the truth and the "cheaters" from New England deserve the worst punishment possible. The problem in this case is that most of the early information released to the public was incorrect, and not only did it appear to be intentional, it was coming from the NFL.
After the misinformation was reported as fact and public opinion was made, Brady and the Patriots had no chance to escape unscathed. It's a great day for Tom Brady because he won't miss any games, but let's not forget the ugly smear campaign brought forth by the NFL on their best franchise, all because a commissioner and his office of cronies wanted to show their power. There will be appeals going forward, but today's findings most likely negates any chance of the NFL winning this case; now they better keep their fingers crossed that Brady doesn't sue for defamation.
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