By Clark Judge
Talk of Fame Network
The clock is ticking on Tom Brady and “DeflateGate,” with most observers anticipating a resolution to the seven-month ordeal soon.
But it’s not "most" observers I’m interested in. It’s Geoffrey Rapp, associate dean for academic affairs and the Harold A. Anderson professor of law and values at the University of Toledo College of Law, I want to hear from. I consulted him during past legal maneuvers within the NFL, including “Bountygate” and the 2011 lockout, and his analyses and predictions were on target.
So it figures I’d want his take on “DeflateGate,” and I do – asking him a series of questions this week about Brady, his position and Judge Berman. What follows are his responses … and his prediction:
“I should preface by saying that lawsuits challenging arbitration in sports operate according to their own, odd fashion,” he said. “Ordinarily, federal courts almost never overturn arbitrator decisions –you’d have to see something that was plainly against the language of the CBA to expect a court to step in. Arguments like “the law of the shop” that are made in the Brady filings would, in an ordinary setting, be pretty clear losers. But, in an ordinary labor-union setting, it would be unheard of for the CEO of the firm to serve as the final arbiter, which makes the NFL vulnerable to arguments that ordinary businesses would easily be able to defeat.”
Q: OK, then, first question: What are the critical elements here on which a judgment could turn?
A: “I’ve never thought the Brady team’s “improper delegation” argument was a winner – even if the commissioner is the one with ultimate disciplinary authority. In a complex, modern league, some level of delegation to league operatives is going to be required. The Brady team is on stronger footing with two of its claims, though it may have less concrete evidence to support one of them (yet). If the judge finds that Goodell was not an impartial arbitrator, then he could set aside Goodell’s ruling. So far, I don’t think the evidence has completely established a lack of impartiality because Goodell was somewhat careful this time around with his public statements. But, absent a settlement, we’re going to learn more about Goodell’s interaction with the Wells Report drafters, and I think it’s plausible the court will find he lacked the necessary level of impartiality. Second, I think the Brady team has a decent argument that the Enforcement of Competitive Rules Policy only applies to teams and not to players. Goodell and the league then have to use the “detrimental to the game” piece focusing on obstruction, which opens up the critique that obstruction hasn’t been used to administer suspensions in the past.”
Q: This isn’t supposed to be about the evidence, yet Judge Berman focused on evidence at last week’s proceedings. What do you make of that?
A: “The case certainly isn’t supposed to be about evidence in the sense that judges reviewing arbitration decisions aren’t re-evaluating underlying allegations or merits of the matter that was arbitrated. In other words, the judge isn’t supposed to be deciding if Brady was involved in a deflation scheme. But there are important questions the judge may be asked to decide – about Goodell’s neutrality and about what kind of notice Brady may have had about potentially being punished for ‘obstruction’ that require some revisiting of the underlying investigation.
“The other thing that is going on here is that the judge is using the powers in his possession to try to bring the parties to a settlement. The NFL wanted to maintain confidentiality, and it certainly wants to protect the reputation of its commissioner and the public image of its disciplinary process, which has been under attack for several years. By asking hard questions about the evidence, the judge ramps up the pressure on the NFL to consider a softer sanction the Brady side could live with.”
Q: If you represented Brady, would you have presented your case as his attorney, Jeffrey Kessler, has?
A: Given that the hourly rate is a lot more than anyone has ever paid me, I’m probably not in a position to question Jeffrey Kessler’s strategy here. Overall, I think he’s played hardball. But that’s what was right for his client. Obviously, he wants a victory for Brady. But this case is as much about Brady’s long-term reputation as it is about the suspension. Even if Kessler loses the case, if the public comes away doubting the process surrounding the suspension, then Brady may emerge better off, legacy intact.
“I also think Kessler’s strategy is part of what we’ll come to see as an initial effort to get the NFL to take away the commissioner’s role in these kinds of arbitrations. Making the NFL hurt here may lead the league to either agree to impartial neutrals in a future CBA for all matters or simply commissioners in practice recusing themselves from such decisions. Either way, in future disciplinary matters that is likely to be a good thing for NFLPA members.”
Q: What do you expect the final judgment to be?
A: “I’d be very surprised if this reaches a final judgment. I think it’s most likely to settle, perhaps with a one-game suspension and Brady agreeing to a larger fine in place of the current punishment.”