Apart from the question of whether Commissioner Roger Goodell possesses sufficient independence to ever serve as the arbitrator in cases involving NFL teams and NFL players is the question of whether he possesses the basic competence to do so.
Unlike some of his predecessors, Goodell isn’t a lawyer. And an arbitration definitely is a legal proceeding.
The first question for any legal proceeding is determining the legal standard to apply. In an appeal, sometimes the entire process starts over again from scratch (the Latin-loving lawyers call that “de novo” review). Most appeals apply deference to significant portions of the work that was done by a lower tribunal.
When former federal judge Barbara Jones overturned the indefinite suspension of former Ravens running back Ray Rice last year, she used the “abuse of discretion” standard, which gives (Captain Obvious alert) a range of discretion to the person who made the initial decision. The hearing officer on appeal may have reached a different decision if handling the case from scratch, but if the person who made the initial decision exercised discretion properly, the decision should be upheld.
Rice’s case arose under the Personal Conduct Policy. The suspension of Patriots quarterback Tom Brady flows from Article 46 of the labor deal, which gives the Commissioner full power over matters regarding the integrity of the game. The standard for Brady’s case is believed to be “arbitrary and capricious,” which is similar to the “abuse of discretion” test. The person handling the appeal may not agree with the decision, but the decision stands unless the person who made it had no reasonable grounds to do so, or failed to engage in an adequate consideration of the circumstances.
Regardless of the specific wording of the standard, the initial Brady decision is expected to receive “very substantial weight” on appeal.
For all appeals that aren’t “de novo,” the record of evidence becomes frozen in place when the appeal commences. Which means that, unless the appeals officer is starting from scratch, no new evidence should be considered. Which makes one of the comments this week from Commissioner Roger Goodell confusing, to say the least.
Asked whether Brady would receive another chance to cooperate with the investigation by surrendering text messages and emails, Goodell said this: “We have a process here. It’s long established. I look forward to hearing directly from Tom. If there is new information or there’s information in helping us get this right, I want to hear directly from Tom on that.”
“New information” shouldn’t matter under the “abuse of discretion” or “arbitrary and capricious” standard. The quest for “new information” has ended at that point. So if Goodell is considering “new information,” he’s not handling the appeal the way he should.
If there’s “new information,” Brady should ask to re-open the investigation, allowing Wells to do whatever it is that he charged the NFL millions of dollars to do, and then giving executive V.P. of football operations Troy Vincent a chance to reconsider the punishment, with Goodell waiting to review the matter on appeal. That apparently won’t be happening, which introduces a major flaw into the process.
A separate problem arises from the reality that, even though Goodell tried to distance himself from the initial decision by delegating it to Vincent, the suspension shows the fingerprints of the man whose signature appears on every football the NFL uses.
“[O]nce we had the [Ted] Wells report, our staff — led by Troy Vincent, who handles these matters on a regular basis and has all spring — immediately began meetings,” Goodell said. “I participated in some of those meetings so I understood the discussion that they were having. Troy made a recommendation. I authorized him to go ahead and issue that as I do in every other case.”
Goodell participating in disciplinary meetings is no different than an owner participating in draft meetings; eventually, the owner’s preferences will become a factor. And when Goodell “authorized” his top football lieutenant to make the initial decision to suspend Brady four games, Goodell may as well have been making the decision himself.
And now he’ll be handling the appeal. Under a standard that shouldn’t allow for “new information” to be considered. Which will do nothing to dissuade the NFL Players Association from arguing that the NFL is, once again, making it up as it goes.