With Commissioner Roger Goodell likely to uphold at least a one-game suspension for Patriots quarterback Tom Brady and with Brady likely determined to challenge any suspension in court, it’s important to consider how a lawsuit attacking Goodell’s ruling would unfold.
Many assume that the case would stretch broadly, with Brady and the NFL Players Association attacking every nook and cranny of the 243-page Ted Wells report and the NFL insisting that Brady finally surrender any and all text messages or other information he refused to give Wells as part of the investigation (and possibly opted not to give to Goodell as part of the appeal). That’s not the way it works, however, when challenging the outcome of an arbitration.
Judges like it when private parties agree to work out their differences through binding arbitration. Because judges aren’t paid by the case or by the hour, the fewer the cases that flood their dockets, the better. Which means that the more arbitration is used in employment settings and elsewhere, the better.
Which means that judges will overturn arbitration awards under narrow circumstances, including dynamics such as bias on the part of the arbitrator, a decision that extends the scope of the arbitration agreement, and in some cases whether the decision was “arbitrary and capricious.”
Earlier this week, multiple reports outlined the plan for fighting a Brady suspension by arguing: (1) that the policy for handling equipment applies to club personnel and not players; (2) that Brady’s “general awareness” of a scheme to deflate footballs doesn’t justify punishment; (3) that Brady did not have fair notice via the rules and/or applicable precedent of the punishment he faced; (4) that other efforts to tamper with footballs did not result in player suspensions; and (5) Ted Wells used subpar and unproven standards for determining that deflation of footballs occurred not naturally but through tampering.
The challenge will begin by questioning Goodell’s impartiality, with a likely argument that Goodell delegated the initial decision to executive V.P. of football operations Troy Vincent (which standing alone possibly creates grounds for overturning the discipline, since the CBA contemplates the Commissioner will make the decision) to make his decision on appeal seem more impartial. Likewise, Brady and the NFLPA could argue that the absence of any public uproar when Goodell goes too far in punishing players versus the open calls for his job when he doesn’t go far enough creates a conflict of interest that makes Goodell more likely to go too far against Brady and other players, in order to never be accused of not going far enough.
The Brady camp has kept very quiet about where the lawsuit would be filed, but one of the factors will be the manner in which the federal appeals court with jurisdiction over the court where the case would begin has handled arbitration rulings in the past. Those clues come from the body of written opinions generated over the years by a given appeals court. With the nation divided into more than 10 federal circuits and with the bar to get to the U.S. Supreme Court incredibly high in any case, picking a federal district court within a favorable federal appellate circuit becomes critical for Brady.
The goal in filing a lawsuit will be getting a ruling before Week One. But courts often move at their own speed, which eventually could force Brady to seek a preliminary injunction, allowing him to play while the case goes forward. Also, if Brady loses at the first level before Week One, he could then seek a preliminary injunction pending the outcome of an appeal.
Regardless of how it all plays out, it should be fairly streamlined and it should move quickly, relative to other civil lawsuits. Still, Brady and the NFLPA will come out swinging as hard as they can, hoping that by pointing out enough of the flaws in the Wells report and the overall handling of the case that a judge will believe Brady was treated unfairly, and in turn will find a way to connect the dots to overturn any suspension.