Talk of Fame Network
A University of Connecticut Law School professor and Harvard Law School graduate provided MassLive with an interesting and unbiased assessment of what may be going on behind closed doors in Judge Richard Berman's chambers as "Deflategate'' continues unresolved. And it doesn't sound good for Tom Brady.
According to MassLive's Kevin Duffy, Prof. Lewis Kurlantzick says most of the public statements and questions raised by Judge Berman that seemed to heavily favor Brady's side of the argument last week may not amount to a hill of beans if the two warring sides force him to rule on the matter.
That's because, in Kurlantzick's view and in Duffy's words, "Although this was great PR for Brady and great theater for everyone in attendance, as it further exposed Roger Goodell's flimsy hand, none of these questions are relevant to Berman's decision. Both sides know this, and that's why the NFL, while suffering another major public-relations hit, might not have any interest in cutting a deal.''
Kurlantzick told MassLive the NFLPA has "a tough road to hoe" convincing Berman to vacate the four-game suspension issued by Roger Goodell because the evidence of wrong doing - or lack of it - will have little to do with Berman's ruling.
"I don't understand, as reported in the newspapers today, why the judge was asking the kind of questions he was asking yesterday — whether there was direct evidence," Kurlantzick, an expert in sports law and arbitration, told MassLive.
"That sounds more like an appellate court that's reviewing the whole thing. In an arbitration where you're asking to vacate, you're not reviewing the whole thing. In other words, we have moved past the question of whether Brady did anything wrong. The only question now is, 'Have any of these four grounds for vacatur occurred?'"
These are the four grounds on which Berman can vacate Goodell's decision to uphold Brady's four-game suspension, according to U.S. Code Title 9 Section 10. They are as follows:
1). Where the award was procured by corruption, fraud, or undue means;
2). Where there was evident partiality or corruption in the arbitrators, or either of them;
3). Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
4). Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
If Berman made clear to Brady what that means, it would explain the scowl on Brady's face when seen leaving court last Wednesday. He did not look like a guy who had just thrown the winning touchdown. He looked like Russell Wilson after the Super Bowl: Stunned and awed by the facts of life.
"You hear the evidence, and you conclude that Brady misbehaved," Kurlantzick explained Berman may have told Brady's side. "I hear the evidence, and I conclude that Brady did not misbehave, OK? None of that leads to vacatur. We have different views as to what the evidence shows, but that's irrelevant at this point. All that matters is whether there was partiality or corruption, whether (Goodell) exceeded his powers (in arbitration). That's it. You have to come within one of those four grounds to vacate.
"It's very rare to have an arbitrator award vacated. One of the claimed virtues of arbitration is finality. So a move from an arbiter body to a court is not the same as a move from a lower court to an upper court. Things that a lower court did that would warrant an upper court reversing them, that would not be the case in arbitration."
The NFLPA's argument that Goodell was an "evidently partial" arbitrator is, in Kurlantzick's words, "unpersuasive," according to MassLive. Fair or not, the NFLPA agreed to this process in its latest CBA (and a half dozen predecessors, we might add). You made your bed so lay in it, Berman may say, even if it stinks.
Some will point to the Adrian Peterson case, as the NFLPA has, citing how his indefinite suspension was vacated by a court. But there is a major difference there. Peterson was punished under a domestic violence policy that did not exist at the time of his incident. So player-friendly federal court judge David Doty ruled arbitrator Harold Henderson ignored the "well-recognized bar" set by Judge Barbara Jones in the Ray Rice case in regards to retroactive punishment.
The policy in effect at the time of Peterson's actions called for no more than a two-game suspension. The NFL's punishment illegally exceeded that and was rightfully overturned.
In this case however, Brady, was punished for "conduct detrimental to the integrity of the game," a section of the CBA in which Goodell has wide powers and flexibility. A violation of this clause gives the commissioner the power to "fine Player in a reasonable amount; to suspend Player for a period CERTAIN OR INDEFINITELY; and/or to terminate this contract." In other words, the CBA provides no hard and fast parameters for Goodell in such a case.
The Players' Association also contends Goodell denied Brady access to investigative files available to NFL counsel and denied his attorneys the right to question NFL general counsel Jeff Pash, who commented on an early draft of the Wells Report. This would fall under the third ground for vacatur and in the end, according to Kurlantzick may be the NFLPA's best argument.
The NFLPA has also argued Brady did not receive fair notice of a possible suspension for his alleged actions, but that depends on how one looks at the ruling. The NFLPA claims the suspension is illegal because Brady is being punished under the equipment violation rules, which mandates a fine for a first offense. Gooodell is arguing it is a "conduct detrimental to the league'' issue and has never cited it as an equipment violation. That, in the end, could become the tripwire for Brady.
In part that clause in the CBA gives as a reason for punishment "...is guilty of any other form of conduct reasonably judged by the League Commissioner to be detrimental to the League or professional football..."
If that clause was any broader, it would be called The Grand Canyon Clause.
How on earth a lawyer as smart as the NFLPA's Jeffrey Kessler ever agreed to that is difficult to fathom, but he and the NFLPA did. Hence a problem looms for Brady unless Berman concludes Goodell should have ruled under the equipment violation rules. Could he do so?
"It's an interesting argument," Kurlantzick told MassLive. "So, first issue would be, are they mutually exclusive? Could you have an equipment violation that is also behavior that is reasonably detrimental to the league? The argument would have to be two steps. One would be it's exclusive, and therefore (Goodell) exceeded his authority. And that's one of the categories for vacatur — exceeding your authority.
"I assume the league could say a couple of things. One is that you're wrong, and it's not an equipment violation as we understand equipment violations within that section of the uniform player contract. The second would be, it's for Goodell to determine what behavior is detrimental to the league. In fact, the wording is very broad. You wouldn't necessarily have to choose one or the other. The strongest argument (for the NFLPA) would be is if it explicitly says, 'This is the exclusive sanction for equipment violations.'"
Unfortunately for Brady, the game-related player conduct rules do not say that. Even though it is stated that a first offense will result in a fine, another paragraph in the policy reads, "Other forms of discipline, including higher fines, suspension, and banishment may also be imposed, based on the circumstances of the particular violation."
Based on that, Kurlantzick seems to conclude only a rewriting of the CBA opens the door for Berman to overturn the suspension, and that no court is likely to do. That the punishment exceeded the crime, if a crime even occurred, seems obvious. That the ensuing investigation, independent or not, came up with no hard evidence that one was committed in the opinion of many may, in the end, not save Tom Brady from The Grand Canyon Clause in his union's badly written CBA either.
If true, he has Jeffrey Kessler to blame for that.
To see MassLive's full story on the matter go to: http://blog.masslive.com/patriots/2015/08/tom_brady_lawsuit_judge_richar.html