The NFL will likely file a notice of appeal with the U.S. Court of Appeals for the Second Circuit and seek an expedited review. As explained below, even if the Second Circuit grants the NFL an expedited review, it would take several months before a decision is made.
The NFL might also seek a stay of Judge Berman’s order that would allow the league to suspend Brady during its appeal, but it is unlikely a stay would be granted.Why Judge Berman ruled for the NFLPAThe simplest explanation
for Judge Berman’s decision is that the NFL failed to show that it applied Article 46 of the collective bargaining agreement in a fair and consistent way
. . . .Among the problems
identified by Judge Berman are those that relate to Brady’s arbitration hearing with Goodell on June 23
. Goodell denied a request by NFLPA attorneys to question NFL general counsel Jeffrey Pash, who edited the Wells Report before its release, and to access the league’s investigative notes. Judge Berman regarded Goodell’s decisions on these issues as preventing Brady from enjoying a credible opportunity to make his case.
Look at it this way: if Brady can’t confront an accuser and study the evidence used to punish him, how can he effectively defend against the accuser’s accusations and the implicating evidence? Judge Berman stressed that denial of access to key witnesses can be grounds to vacate an arbitration award.
Judge Berman also criticized the NFL for how it indistinctly notified Brady of accusations and confusingly explained under which set of rules he was being punished
. Take the Wells Report, which used the league’s Integrity of the Game and Enforcement of Competitive Rules policy—a document not collectively bargained with the NFLPA—to find that it was “more probable than not” that Brady had “general awareness” of a football scheme supposedly hatched by two equipment assistants. Later, in his testimony during Brady’s appeal, NFL executive vice president Troy Vincent referenced the Game-Day Operations Manual—also not collectively bargained with the NFLPA—as a crucial document in finding Brady at fault. While the league has also cited Article 46 as grounds to punish Brady, Judge Berman seemed perplexed as to what degree non-collectively bargained documents should be considered sources of authority to punish Brady.
Likewise, Judge Berman criticized Goodell for asserting that Brady received adequate notice of discipline because the four-game suspension matches up the penalty scheme outlined in the collectively bargained steroid policy
. The steroid policy, wrote Judge Berman, “cannot reasonably be used as a comparator for Brady’s four-game suspension for alleged ball deflation by others . . . [the steroid policy sets forth procedures] none of which has anything to do with Brady’s conduct and/or his discipline.”
Judge Berman also seemed influenced by the lack of consistency in NFL discipline.
In prior instances of players being implicated by equipment tampering, those players were fined, warned or not punished in any way. It was never made clear why Brady was treated differently and significantly worse. Similarly vexing for Judge Berman was how the league’s characterization of Brady’s alleged wrongdoing became harsher without explanation
. What began as general awareness of others misconduct has morphed into active involvement in a scheme.
Lastly, Judge Berman raised distinctions between favorable court decisions cited by the NFL and the Brady arbitration
. The most crucial distinction is that those decisions involved a neutral arbitrator whereas Goodell was clearly not neutral
. While Article 46 permits Goodell to serve as the arbitrator for player appeals, Judge Berman noted that the “law of the shop”—which compels consistency and fairness in arbitration awards—bars Goodell from rendering a decision that may have been compromised by bias.
Also, Brady, unlike participants in normal arbitrations, lacked the ability to change the arbitrator even if he could show Goodell was biased.The NFL can still punish Brady, but only in accordance with Judge Berman’s order
. . . .
At first glance, Ray Rice’s successful legal saga with the NFL might seem helpful for Brady in the event the NFL tries to “double punish” him. ["Snip!"--Ed.] Jones concluded that Goodell acted in an arbitrary manner when he punished Rice a second time.
She highlighted testimony that indicated that the NFL already knew about the full details of the hotel incident before a second video of Rice hitting Palmer became public.Brady’s situation is very different from that of Rice.
["Snip!"--Ed.] If Brady is suspended again, it would occur not because the NFL claims to have uncovered new information or evidence, but because a federal judge has vacated the first suspension and the NFL is exercising its right to punish Brady. The NFL does not lose its collectively bargained right to punish a player because a federal judge has vacated an arbitration award. Now THAT would be ballsy on Goodell's part. But fast!
Of course, one sensible reading
of Judge Berman’s ruling is that the NFL should not be able to re-punish Brady because the league never gave him adequate notice in the first place. While the NFL would likely disagree with that reasoning, it is worth considering. One interpretation is certain: If the NFL seeks to punish Brady again, it should only do so in a judicious way.
The league must avoid a repeat of the process problems clearly identified by Judge Berman. If instead the league subjects Brady to another series of unfair applications of rules, it could find itself back in court for Tom Brady v. NFL II.A lengthy appeals process awaits
The next stage of the litigation will likely occur when the NFL files a notice of appeal with the U.S. Court of Appeals for the Second Circuit
. Which they have indicated they will do.
With the important caveat that we do not yet know the composition of the three-judge panel, the NFL faces an uphill climb in convincing at least two of the three appellate judges that Judge Berman misapplied the law
. Although each case presents unique issues and facts, appellate courts typically do not reverse district court judges on their orders to vacate or confirm arbitration awards
. The NFL will nonetheless need to persuade at least two of the three panel judges that Judge Berman’s decision to vacate Brady’s suspension reflects a misunderstanding of Article 46 and a disregard of a lengthy set of case precedents where federal district judges almost always confirm arbitration awards.
["Snip!"--Ed.] To be clear, the appeals process will not include new evidence or any witness testimony
. Almost all of the appellate review will consist of the three appellate judges reviewing legal memoranda filed by attorneys for the NFL and NFLPA. There will be an opportunity for brief oral arguments, where the lead counsel for each side makes his or her best case to the three judges. In the Second Circuit, those arguments are typically limited to merely 10 minutes and often the judges interrupt the attorneys with questions.In terms of timing, the typical appeal in a U.S. court of appeals takes eight to 12 months
[Stop that!--Ed.] There are many factors that influence timing, but it is safe to say that the NFL’s appeal will likely not be decided until sometime next spring or summer
.NFL could also seek a stay, but is unlikely to obtain one
A stay, as I explained more fully last week, would prevent Judge Berman from carrying out the order—in this case the vacating of Goodell upholding Brady’s suspension—until an appeal is decided. If the NFL is granted a stay, Brady would have to serve his suspension despite being the winner in Judge Berman’s decision.
The NFL would first need to petition a stay from Judge Berman. If he denies it, the NFL would try to obtain one from the Second Circuit.
Stays are difficult to obtain and are considered extraordinary measures. The NFL also would not seem to have an especially strong argument for a stay. This is particularly apparent in regards to a showing of “irreparable harm.”
There are four prongs to a stay, and one involves whether the NFL can show it would suffer irreparable harm if a stay is not granted. Irreparable harm generally refers to harm that can’t be remedied by a court order and probably will occur before an appeal is decided.
["Snip!"--Ed.] The NFLPA, however, would have a compelling argument in response
. First, the NFL wouldn’t lose the ability to suspend Brady if he’s able to play in the first four games of the season. If the league wins the appeal, it could carry out the suspension at a later date—perhaps to start the 2016 season. Second, through the NFLPA, suspended players have always had the option to challenging disciplinary matters in court; Brady’s win doesn’t change that.Our Man McCann: SI