Attorneys for the NFLPA and the NFL were back in federal court on Wednesday for oral arguments regarding the propriety of Roger Goodell’s decision to uphold Tom Brady’s four-game suspension. The arguments each side will make and their likelihood of success have been well documented. But not much attention has been paid to what will happen if Brady were to convince Judge Berman to vacate Goodell’s decision - that’s Goodell the arbitrator, not Goodell the Commissioner. The judge is tasked with reviewing the decision of Goodell the Arbitrator to uphold the decision of Goodell the Commissioner. Confused yet? Don’t worry, so is Roger.
Even if Brady ‘wins’ it is not certain that he would play week 1. The uncertainty is entirely dependent on why Judge Berman vacates the arbitration award and more importantly, how he crafts his order to the parties. Remember, there is what should happen and then there is what will happen. With the NFL and the egos involved there is no telling what will happen. But to have any chance at predicting what will happen, it is important to understand the context of the parties’ contentious relationship.
The NFLPA and NFL Absolutely Dislike Each Other
Ever since the lockout in 2011, the relationship between the NFL and the Players Association has been strained. And that is putting it nicely. Bitter divorces are more amicable than the past four years between these two. Dogs and cats living together is exponentially more harmonious.
After the lockout the NFLPA learned that the NFL conspired to place a secret cap on the uncapped 2010 season. In May of 2012, the NFLPA filed suit in federal court seeking damages for the secret cap – the case is still pending. In the same month, Roger Goodell and the NFL handed down suspensions to New Orleans Saints players in the Bountygate scandal. These suspensions would be vacated entirely by Paul Tagliabue in December, 2012.
After that the relationship was relatively stable. Then the 2014 season came along. In the first few weeks of the season Roger Goodell suspended Ray Rice, Adrian Peterson, and Greg Hardy for domestic violence issues. Rice was suspended two games initially then indefinitely after video surfaced of him punching his fiancée in an elevator. Hardy and Peterson were placed on the Commissioner’s exempt list – where Hardy remained for the entire 2014 season - pending the outcomes of their criminal cases.
These suspensions and the appeals that followed[i] demonstrate just how fractured the relationship has become. The NFL and NFLPA fought each other at every turn, despite agreeing that domestic violence is wrong and players should be punished for engaging in such conduct. As a result of the public outcry, the NFL promulgated a new conduct policy which significantly increases suspensions for domestic violence violations – that policy is of course being challenged by the NFLPA.[ii]
From the Saints Bountygate suspensions to Greg Hardy four straight major conduct detrimental decisions have been overturned or reduced on appeal. Pretty compelling reasons for the NFLPA to view the League with suspicion, and certainly in the back of a judge’s mind when weighing the credibility of the NFL’s statements.
But the most instructive case for predicting the future of Brady if he wins is Adrian Peterson. Peterson was suspended for “at least the remainder of the 2014 season” in November, 2014. The NFLPA immediately appealed the decision which was rejected by arbitrator Harold Henderson. In February, the NFLPA successfully lobbied a federal judge to vacate Henderson’s decision. Despite the court’s order for “further proceedings before the arbitrator consistent with the CBA” there have been no such proceedings. According to the NFLPA, this is because the NFL successfully lobbied arbitrator Harold Henderson to issue a stay of proceedings pending the NFL’s appeal to the Eight Circuit.
The outcome of appeal and any decision on remand are largely irrelevant to anyone not named Adrian Peterson because Peterson was reinstated by the NFL in April. Whether his suspension was valid or invalid only impacts how much of his paycheck Peterson gets back. As far as I know, the NFLPA does not possess a time traveling DeLorean which would allow Peterson to play the games he missed.
Not irrelevant is the outcome of the NFLPA’s motion to hold Roger Goodell and the NFL in contempt of court. The Player’s Association calls the NFL’s conduct contumacious – defined as stubbornly disobedient (don’t worry, I had to look it up too). As a result of the NFL’s contumacious delay nearly six months have passed since the court ordered further proceedings consistent with the CBA – the longest, unresolved conduct detrimental appeal in League history, according to the NFLPA. If, and it’s a big if, the court finds the NFL in contempt of its order for further proceedings before Judge Berman rules in Brady, it will provide great fodder for the NFLPA to get a quick resolution on remand. If not, we could very easily see history repeat itself.
So, What Happens if Judge Berman sides with Brady?
With all of the above context it mind, the disappointing answer is, it depends. It depends on why he vacates Goodell’s July 29 decision,[iii] and how he crafts his order. He has some leeway in crafting his order, and is certainly aware of the Adrian Peterson situation so it would make sense for him to be as specific and detailed as possible to avoid Brady ending up in limbo.
At a minimum Berman will remand for further proceedings consistent with the CBA.[iv] But we already know based on the Peterson case that the NFL and NFLPA don’t agree on what this means. If that is all the order says, it is a safe bet that the NFL appeals to 2nd Circuit and Goodell as arbitrator issues a stay pending the outcome on appeal. At which point we end up just like AP where Brady would sit out 4 games and then the legal battle would be over how many game checks he is entitled to.
In this scenario, Brady and the Players Association would seek an injunction allowing Brady to play pending the outcome of the NFL’s appeal and any subsequent remand. A similar situation occurred in 2008 in the StarCaps saga. Pat and Kevin Williams obtained injunctions while fighting their suspensions and Pat Williams ultimately retired in 2011 before his suspension could take effect. If Brady plays less than the 7 years he thinks he has left, he could retire before any suspension takes effect.
Of course, Judge Berman is aware of all this, and presumably a pretty smart guy (federal judges typically are). Which is why I expect him to craft an order preventing this type of situation.
The reasoning behind the decision to vacate matters because it determines the type of remedy Berman can order. If Berman vacates for a reason other than a finding that Goodell was partial, it is possible (but extremely unlikely) that Berman simply remands for “further proceedings” and Goodell hears the appeal, this time correcting the procedural issues as found by the court. If Berman finds that Goodell was partial, it obviously removes the possibility of the Commissioner hearing the appeal on remand.
More likely, Berman will craft a very specific order requiring a neutral arbitrator, not the Commissioner to hear the appeal on an expedited basis.[v] Berman’s order would require the NFL and the new arbitrator to fix any procedural issues such as access to witnesses and evidence. Finally, and perhaps most importantly, I would also expect Berman to issue an injunction allowing Brady to play pending the outcome of his new arbitration appeal.
Finally, a word of caution to Patriots fans and those who have Tom Brady on their fantasy team. It is absolutely possible (although unlikely) that even a new neutral arbitrator upholds Goodell’s four-game suspension. The Commissioner’s discipline decisions for conduct detrimental are given great deference and are reviewed to determine whether the Commissioner abused his discretion, that is, whether his determination was arbitrary or capricious – not an easy standard to defeat.
It’s impossible to know exactly what will happen if Judge Berman sides with Brady and the NFLPA, especially because the NFL has proven to be unpredictable, but it’s a safe bet that it won’t all be sunshine and roses.
[i] All available in our NFL Player Discipline Library.
[ii] The NFLPA is also currently challenging whether the Commissioner may delegate his conduct detrimental disciplinary authority.
[iii] It is a crucial to remember that the judge is only being asked to determine the propriety of Goodell’s arbitration decision. He is not tasked with assessing the original suspension handed out on May 11. It’s certainly a tricky thing to understand, but a win really only restores the status quo to May 12.
[iv] This was the result in Peterson. Similarly, in a Missouri Supreme Court case involving an arbitration between a St. Louis equipment manager and the NFL heard by Roger Goodell, the Court held that the Commissioner was not sufficiently “neutral” enough to protect Hewitt’s right to have a fair hearing. The Court directed the trial court to issue a new order compelling arbitration with a neutral arbitrator, not the commissioner.
[v] I’m just guessing, but during the private settlement conferences Berman may have asked each side for a list of neutral arbitrators from which to draw should he decide to vacate and remand.
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