When the NFL Players Association files later today an appeal of Patriots quarterback Tom Brady’s four-game suspension, the next phase of the #DeflateGate drama officially will begin. The first question will be whether Commissioner Roger Goodell handles the appeal himself (unlikely), appoints a neutral arbitrator (unlikely), or hands the baton to Harold Henderson or someone else with existing ties to the league office (likely).
The identity of the arbitrator will influence the outcome in many ways; Goodell or Henderson may resolve key issues one way, while a truly independent arbitrator may look at the situation differently. Regardless, there are issues that will be critical to the resolution of Brady’s appeal.
One of the biggest issues relates to the Commissioner’s decision to delegate the initial decision to executive V.P. of football operations Troy Vincent.
The May 11 letter from Vincent to Brady explains in the first sentence that Commissioner Roger Goodell “has authorized me to inform you of the discipline that, pursuant to his authority under Article 46 of the CBA, has been imposed on you.” Per a source with knowledge of the situation, Brady’s appeal will focus in part on the language of Article 46, which encompasses “[a]ll disputes involving . . . action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of football.”
The language of Article 46 implies that the Commissioner will take the action against Brady, not Troy Vincent or anyone else. And it’s obvious that Vincent made the decision. Indeed, Goodell made it clear from the moment that Wells report was issued that “Troy Vincent and his team will consider what steps to take in light of the report.”
Some believe Goodell delegated the decision to Vincent to create a buffer aimed at insulating Goodell against the wrath of Patriots owner Robert Kraft. Regardless, the union will argue that the plain language of Article 46 required Goodell to make the initial decision, and that he was prevented from delegating it to anyone else.
Article 46 also requires that, for any discipline imposed for conduct detrimental to the integrity of, or public confidence in, the game of football, the Commissioner “shall consult with the Executive Director of the NFLPA prior to issuing, for on-field conduct, any suspension or fine in excess of $50,000.” Assuming that Brady’s infraction involves on-field conduct because it relates to footballs used during games, Goodell was required to consult with DeMaurice Smith before issuing the discipline.
If that didn’t occur, it’s likely not fatal to the suspension. It nevertheless shows a failure by the NFL to dot all i’s and cross all t’s in a case where the evidence against Brady as it relates to the AFC title game relies on a hypertechnical scientific analysis of football air pressure. Thus, if technicalities can be used against Brady, why can’t technicalities be used against the NFL?