While basic P.R. concerns prevent the NFLPA from putting it this way, the primary argument against the suspension of Tom Brady is that, even if he did what he’s accused of doing, he can’t be suspended for it.
As to Brady’s alleged “general awareness” that one or more Patriots employees were deflating footballs, the NFLPA argues that the discipline was imposed under a policy that is not distributed to players. Which, as a matter of basic labor law, prevents the NFL from disciplining Brady for any violations of the policy.
The transcript of Brady’s appeal hearing includes admissions from executive V.P. of football operations Troy Vincent that prove these two key points.
“Where do you find the policy that says footballs can’t be altered with respect to pressure? Is that going to be in the competitive integrity policy that Mr. Wells cited in his report?” attorney Jeffrey Kessler asked Vincent.
“Game-Day Operations Manual,” Vincent said.
“Is it correct, to your knowledge, that the manual is given to clubs and GMs and owners, et cetera, but the manual is not given out to players; is that correct, to your knowledge?” Kessler said.
“That’s correct, to my knowledge,” Vincent said.
“In fact, when you were a player, you were never given that manual, right?”
“No,” Vincent said.
Earlier in the hearing, Brady testified he never received a copy of the Competitive Integrity Policy.
While the NFL will argue that Brady was disciplined generally for conduct detrimental to the integrity of the game (indeed, that was the specific conclusion reached in the appeal ruling), the NFLPA will argue that labor law requires much more specificity and, fundamentally, notice as to what is prohibited.
By way of comparison, if a player were deliberately and intentionally using stickum, he arguably would be engaging in conduct detrimental to the integrity of the game, he’d be subject to only a fine, because the negotiated fine schedule allows a fine of $8,681 for having a foreign substance on the body or uniform. And other equipment or uniform violations result in a fine of only $5,787 for a first offense.
The NFL hasn’t secured via collective bargaining the ability to impose a suspension for these types of “cheating” violations, even when the player is personally committing the offense. More importantly, the NFL hasn’t informed players that they can be suspended for such behavior.
That alone, in the opinion of the NFLPA, will keep Brady from being suspended. The real question is whether Judge Richard M. Berman disagrees.