Improper Notice and Arbitrary Discipline: Brady Says to Goodell, “Can’t Touch This”

Posted by

On Thursday September 3, 2015 Judge Richard Berman, federal district court judge in the Southern District of New York and the adjudicator of the Tom Brady Deflategate scandal, issued a decision and order in the litigation between Brady and the National Football League. The lawsuit concerned the legality of the quarterback’s four-game suspension. Ultimately, Judge Berman reversed the NFL’s arbitration decision to suspend Brady; meaning, unless an emergency injunction is approved by the appellate court, Brady will be available to play in the Patriots’ Week 1 matchup.

Earlier this week, Brady and the NFL failed to come to terms on a settlement agreement, which left the fate of the case (at least at the trial court level) to the discretion of Judge Berman. Since the judge could not instate his own suspension terms, such as a reduction of the initial four-game suspension, the failure to settle meant that the final judgment would completely be in favor of one party over the other—an affirmation of the suspension or a reversal thereof.

Although the odds of success for Brady seemed to be 50/50 following the failure to settle, his victory was somewhat significant. The NFL is a private association. Such entities, aside from breaking a law, are permitted to create their own rules and conduct internal operations as they see fit. Courts generally will not interfere with these processes. An organization’s conduct may be actionable, however, when it breaks its own rules, acts arbitrarily, or fails to provide due process of some kind, such as a “notice” deficiency. In the matter between Tom Brady and the NFL, Judge Berman found that intervention into the suspension process was primarily necessary under two of these limited circumstances.

For the most part, Judge Berman reversed the NFL’s suspension for multiple failures to provide Brady with proper notice, some of which the court found to be arbitrary failures. Therefore, the reasoning behind the court’s decision to intervene in the NFL’s arbitration process and to reverse its suspension of Brady can be summed up in one short phrase—the league arbitrarily failed to provide Brady with proper notice.

The first of such failures was the league’s application of its anabolic steroid discipline policy to Brady’s case. In suspending Brady, Roger Goodell, the NFL’s commissioner, relied on the report of an independent investigator (“The Wells Report”), which concluded that Brady had “general awareness” of the ongoing deflation of game balls during the 2014 NFL Season. The NFL decided that the appropriate discipline for the circumstance was to apply the four-game suspension used to punish first-time steroid violators. Judge Berman noted that the general awareness of “the inappropriate activity of others” and the usage of steroids in violation of league rules were in no way comparable. He also explained that neither Brady nor any NFL player was ever expressly informed that such “awareness” could be punishable by the four-game suspension policy. Therefore, the court held that the application of a steroid suspension to Brady’s case could not be “perceive[d] [as] notice of discipline . . . .”

Secondly, in agreeing with the Players’ Association, Judge Berman concluded that the league failed to provide Brady with notice of a “discernible infraction,” thus further violating the quarterback’s right to due process. Again, Brady was suspended due to his “general awareness” of football deflation by Patriots’ staff members. The judge noted that no NFL policy or disciplinary precedent “provided notice that a player could be subject to discipline for general awareness of another person’s alleged misconduct.” In other words, without a specific rule in “the book,” and without a discernible violation thereof, Brady could not be punished even if he did have knowledge of the wrongdoing. His suspension, according to the court, was therefore asserted without proper notice.

Lastly, the court held that Brady was not provided proper notice due to the lack of “notice of suspension as opposed to [a] fine.” Under the league’s rules for equipment violations “designed to gain a competitive advantage,” the policy is that a first-time offense is punishable by fines. As the deflation of footballs qualifies under this rule category, Judge Berman agreed with the Players’ Association that Brady only had notice of potential fines and not of suspension. Accordingly, the court held that any suspension of Brady for his alleged offense was in violation of his right to notice.

In sum, it is important to understand that Judge Berman’s reversal of the suspension does not exonerate Brady from any wrongdoing. The judge, in fact, did not make any opinion as to whether Brady was involved in a deflation scheme. Brady’s suspension was reversed because the quarterback was not properly notified.

Leave a Reply

Your email address will not be published.