It’s clear that Judge Richard M. Berman wants the NFL and NFLPA to settle their differences regarding the Tom Brady suspension. It’s becoming more clear that, if the case doesn’t settle, he has an opportunity to bring real change to the way the NFL takes care of its internal business.
A ruling from Judge Berman that scraps the suspension and points out the many flaws in the investigation and the league’s handling of it could finally force the NFL to ease back from its insistence that the Commissioner retain final say on any disputes involving player discipline.
The Missouri Supreme Court already has taken a chunk out of the Commissioner’s power when it comes to non-player employees, finding earlier this year that the Commissioner cannot serve as an impartial arbitrator in cases involving claims made against one of the 32 teams for which he works. Now, Judge Berman could provide a written ruling that would make the Southern District of New York the new forum of choice for players fighting suspensions.
Which should make Judge Berman even more inclined to ensure that cases like this won’t come up again in the future.
Indeed, if the NFL used a truly neutral arbitrator, cases like this would come up far less frequently. If ever.
And why shouldn’t there be neutrality? As explained on Wednesday’s PFT Live on NBC Sports Radio (every weekday at 12-3 p.m. ET), the NFL should want its partnership with the league’s players to provide them access in all matters of league-imposed discipline to a truly independent forum. If the players had that, they would feel less compelled to seek out a neutral forum after the arbitrator-commissioner rules.
Neutrality would ensure an outcome that seems fair due in large part to a process that seems fair. If there was any doubt before the release of the Tom Brady appeal hearing transcript, there should be none now about whether the process is truly fair. Jeff Pash, who injected himself into the investigation/prosecution by reviewing and commenting on the Ted Wells report before it was published, was shielded from testifying by the arbitrator-commissioner. Jeff Kessler, who wanted to have the same access to the raw interview notes from the “independent” investigation that investigator-advocate Lorin Reisner enjoyed, was denied that opportunity by the arbitrator-commissioner.
Let’s think about that for a second. How can we know that Ted Wells and company accurately translated the interview notes to the 243-page report without seeing the notes? Indeed, no one ever would have known that the characterization of Brady’s testimony in the Commissioner’s ruling conflicts with Brady’s actual testimony if the transcript hadn’t been released (and now we know why the NFL didn’t want the transcript to be released).
The use of a neutral arbitrator would provide a much greater sense that decisions are being made based on fundamental notions of fairness and justice and not a potential desire to justify a predetermined conclusion and/or to suppress evidence that would contradict it. A neutral arbitrator would enhance player confidence in the adequacy of the process.
At this point, only the use a neutral arbitrator would restore public confidence in the game of professional football, as it relates to the manner in which the game of professional football punishes its players.
Although Judge Berman doesn’t have the power to strip the Commissioner of his power to be the arbitrator, a sufficiently strong and clear ruling from Judge Berman could lead to the same place. In recent months, the NFL abandoned its outdated blackout policy (technically, it’s suspended, but it’s not coming back) and changed the league office’s tax-exempt status because the issues had become too awkward from a political and P.R. standpoint. Judge Berman’s ruling could prompt the NFL to make a similar decision regarding the insistence on final say.
Maybe a final ruling from Judge Berman isn’t needed. Maybe Judge Berman’s intent to broker a settlement of the Brady case will become something broader on August 12, especially if he makes it clear to the NFL and NFLPA that he prefers an outcome that not only takes the Brady case off his docket, but that ensures no other cases of this type will ever land there again.