With the NFL season just beginning, and Tom Brady leading the New England Patriots to victory over the Steelers, we decided to provide you with a bit of football-inspired labor law. On September 3, 2015, Judge Robert Berman of the U.S. District Court of New York issued his decision in the now infamous “Deflategate” case. By now, the decision has been reported, analyzed, and scrutinized to death in the sports pages and on ESPN, but no media outlets have looked at the important labor law implications of the Judge’s decision. As explained below, the opinion is quite unique from a labor law perspective. Also, the Judge’s opinion has several lessons for employers outside of the high-profile and flashy world of NFL football.

By now, most are aware of the incident now known as Deflategate. On January 18, 2014, during the AFC championship game, the NFL tested the New England Patriots’ footballs to see if they were pressurized correctly. The NFL determined that all 11 footballs tested were below the acceptable level of pressurization. As a result, the NFL undertook a $3 million investigation into the use of these under-inflated footballs by the Patriots. As a result of a supposedly independent investigation, Tom Brady was found to be “generally aware” of the practice of deflating the Patriots’ footballs. The Patriots were required to pay a $1 million fine, give up their 2016 first round draft pick, and give up their fourth round draft pick in the 2017 draft. Brady was subject to a four-game suspension at the beginning of the 2015 season.

Brady, through his union, the NFL Players Association (NFLPA) requested arbitration of the suspension decision pursuant to the collective bargaining agreement between the NFL and the NFLPA. NFL Commissioner Roger Goodell appointed himself as the arbitrator as was permitted under the terms of the collective bargaining agreement. Goodell affirmed the decision. Brady and the NFLPA filed suit in federal court, seeking to vacate the suspension.

If this case involved a typical employee seeking to overturn an arbitration award, most labor lawyers would have said the odds of Brady winning the lawsuit were worse than the current Vegas odds of the Chicago Bears winning the Super Bowl this season (100 to 1 according to Vegasinsider.com). As every labor lawyer knows courts are not authorized to review the arbitrator's decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties' agreement. See Paperworkers v. Misco, Inc., 484 U.S. 29, 36, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). “If an ‘arbitrator is even arguably construing or applying the contract and acting within the scope of his authority,’ the fact that ‘a court is convinced he committed serious error does not suffice to overturn his decision.’” Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000). 

Of course, Tom Brady is not a typical employee and the New England Patriots and NFL, are not your typical employers. As he’s done throughout his career, Brady beat the odds once again.   

As all football fans know by now, Judge Berman vacated Goodell’s decision to uphold Brady’s four-game suspension. The grounds relied upon by Judge Berman in doing so were (1) Brady had no notice that his actions rose to the level of conduct detrimental to the game, (2) Brady had no notice that he could be suspended for such conduct, and (3) Brady was not afforded adequate due process. A close reading of his decision calls into question whether Judge Berman applied the high level of deference to Goodell’s decision that courts typically apply when reviewing arbitration awards. 

For example, Judge Berman noted that “[n]o NFL policy or precedent provided notice that a player could be subject to discipline for general awareness of another person’s alleged misconduct.” The NFL argued that Brady was on notice that his conduct was punishable by virtue of the League’s “conduct detrimental” standard, which prohibits players from engaging in conduct that is detrimental to the “integrity of, or public confidence in, the game of professional football.” The court ruled, however, that this provision failed to provide Brady with specific notice that his asserted awareness that Patriot’s staff members had deflated game balls below the league mandated minimum pressure was punishable, and further reasoned that Brady was without any “reasonable certainty of potential discipline stemming from such conduct.” In holding that the award must be vacated, the court noted that “the law of the shop” was to provide the players with advanced notice of prohibited conduct. By failing to provide such notice, Goodell violated the “law of the shop.” The court noted: “[a] rule must clearly and unambiguously establish the scope of prohibited conduct, as well the consequences of violations, in order to be enforceable.” Thus, although Brady’s general awareness of the Patriots’ use of deflated balls constituted cheating or gaining a competitive advantage, because no specific rule addressed such conduct, Brady was said to not have notice, according to Judge Berman. The Judge’s rationale seems questionable in that it is somewhat hard to fathom that a player would not be aware that intentionally under-inflating game footballs in violation of NFL rules (i.e., cheating) would be deemed to be conduct “detrimental to the integrity of, or public confidence in, the game of professional football.” At a minimum, this rationale, on its face, appears to consist of the sort of “second guessing” of an arbitrator that courts typically are reluctant to engage in.

Judge Berman also arguably departed from the normal standard of deference by finding that Brady did not have specific notice that his conduct could be subject to a suspension from the game. Goodell, in explaining his rationale for subjecting Brady to a four-game suspension, compared Brady’s actions to players’ use of steroids or other substances. In essence, according to Goodell, the use of steroids, like the deflation of game balls, constituted an attempt by Brady to gain a competitive advantage over the Colts in the AFC Championship. The court explicitly rejected this rationale, stating that the purpose of the policy against the use of steroids was not to protect against gaining a competitive advantage, but to maintain the health and safety of the players. Because the deflation of game balls is unrelated to the health and safety of the players, according to Judge Berman, the two polices are not comparable, and thus the discipline meted out for Brady’s conduct should not be based on the League’s prohibition of the use of steroids. Additionally, the court noted that no player in NFL history had been suspended for general awareness of or participation in the deflation of footballs. Nor had any player been suspended for non-cooperation in an investigation.

Once again, regardless of whether the NFL was correct in analogizing game ball deflation to steroid use, this arguably is the sort of rationale and policy judgment that courts typically leave to an arbitrator’s discretion. 

Finally, Judge Berman found that Brady was denied due process during the arbitral process because Goodell failed to allow certain witnesses to testify and failed to permit Brady access to certain documents available to and relied upon by the Deflategate investigators that supported the suspension. These documents were also available to the NFL during the arbitral hearing.

Once again, while Judge Berman raises legitimate questions about the “fairness” of the hearing, those familiar with the deference typically given to arbitrators in conducting arbitration hearings may legitimately question whether Judge Berman would have applied the same rationale in reviewing a typical labor arbitration award.

Judge Berman also was troubled by the fact that Roger Goodell was not a truly “neutral” arbitrator, given his position as Commissioner of the League and representative of management in labor matters. Nevertheless, even here, one may question whether Judge Berman was improperly “second-guessing” both the NFL and NFLPA since the parties’ had agreed that the Commissioner could act in this capacity.

In summary, from a labor law perspective, “Deflategate” is unique. Hopefully, other judges will not rely on Judge Berman’s decision as precedent for second-guessing arbitration awards in less high-profile circumstances. Nevertheless, “Deflategate” does offer some important lessons for all employers that are parties to collective bargaining agreements:

1. Conduct and disciplinary standards should be well-defined and consistently applied;
2. The employee’s union representative typically should be given access to the evidence relied upon in making the disciplinary decision being challenged during the grievance and arbitration process; and
3. The arbitration process contained in a collective bargaining agreement should provide for the selection of a mutually agreed upon and neutral arbitrator