Deflategate Continues: Pro-Labor Organization Voices Concern About Power of Arbitrator

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On May 23, 2016, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), a pro-labor federation, filed an amicus brief in support of Tom Brady. This comes after the Second Circuit U.S. Court of Appeals overturned the district court and held in favor of the NFL, stating that Goodell properly exercised the authority bargained for in the collective bargaining agreement between the National Football League (NFL) and NFL Player’s Association (NFLPA). Tom Brady and his lawyer requested a re-hearing by the three-judge panel or for Brady’s appeal to be heard en banc, meaning all active judges of the Second Circuit would rehear the case.

The AFL-CIO is the largest federation of unions in the United States, and a powerful ally for Brady. It is a federation of fifty-seven national and international labor organizations, which represents approximately 12.2 million employees. AFL-CIO states that because it has negotiated numerous CBAs, it has a serious interest in the outcome of the Brady case. The brief argues that Second Circuit Judges gave Goodell a level of deference “ordinarily extended to decisions of neutral arbitrators.” This level of deference was unfair because Goodell “failed to follow basic procedural fairness” when he first heard Brady’s appeal as arbitrator. The brief claims “even a cursory review of the commissioner’s decision makes clear that he acted in the self-serving role of an employer justifying his own disciplinary decision rather than as a neutral arbitrator considering an appeal.”

At issue is whether Goodell’s actions can be considered “arbitrary and capricious.” Troy Vincent, NFL executive V.P. of football operations initially suspended Brady after an investigation. Vincent decided that Brady was “generally aware” of football tampering. Goodell, instead of ruling on this finding, held that Brady “knew about, approved of, consented to, and provided inducements and rewards” with regards to Patriots’ employees deflating footballs and upheld the four-game suspension. Brady and his attorneys argue Goodell, acting as a neutral arbitrator, should not be looking for or considering “new information.”

The AFL-CIO is not the only organization to throw its support behind Tom Brady. The list includes 21 scientists from across the country, a group of law professors, the New England Patriots (a rare move against the NFL and Commissioner Goodell), and Kenneth Feinberg (an attorney and the administrator who disperses funds to victims following September 11th and the Boston Marathon bombing). The various briefs voice concern that the Second Circuit’s deference to Goodell’s decision sets a dangerous precedent and that the decisions has “serious potential to affect public confidence” in the arbitration process. Further, “if [the panel’s decision’ is permitted to stand, parties will and should question the risk posed by arbitration.” With expiring CBAs in the NBA and MLB, this case acts as a warning to unions about approaching negotiations on how much power to allot to a Commissioner.

The Second Circuit will likely decide whether to rehear the case, which rarely occurs, by the end of June.


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