In a letter to U.S. District Court Judge Richard M. Berman, NFL Players Association lawyer Jeffrey Kessler argued that Tom Brady should have been fined, not suspended, as required by the league’s collective bargaining agreement (CBA). Furthermore, Kessler claimed that even if the suspension was in compliance with the CBA, it is still inappropriate because Brady was not given a notice of his suspension in advance.
Kessler’s letter is a response to a filing by the NFL arguing that courts have the authority to vacate arbitration awards only in extraordinary circumstances and that out of the 19 arbitration decisions, previously cited by the NFLPA, that have been vacated by the same court hearing the DeflateGate case, only two have come since 2000.
NFL attorney Daniel Nash had said, “These cases confirm that courts vacate arbitration awards only in extraordinary circumstances, none of which are present here. While no one disputes that judicial deference to arbitration awards is not absolute, the Union’s statement that ‘arbitrations of this type have been set aside’ grossly distorts legal precedent.”
Nash further had stated that “[n]one of the [19] cases cited by the Union — indeed no reported decision of which we are aware — use the phrase ‘violation of the essence of the CBA’ that the Union repeatedly asserts in support of its main argument for vacatur. But the ‘essence of the CBA,’ as that phrase has been used consistently by the Supreme Court and the courts in this Circuit, refers to the highly deferential standard of review applicable to labor arbitration awards, which requires confirmation where the award is even arguably based on the arbitrator’s factual findings and interpretation of the CBA.”
Judge Berman is scheduled to meet with both the NFLPA and the NFL one last time next Monday. He has until September 4 to make his decision.