Boom goes the dynamite all across New England.
The 2nd U.S. Court of Appeals in New York today has upheld the NFL’s suspension of Tom Brady, who will miss the first four games of the season for his role in the Deflategate controversy pending further litigation or negotiation with the league.
The reversal of Judge Richard Berman’s decision in a 33-page release.
“We hold that the Commissioner properly exercised his broad discretion under the collective bargaining agreement and that his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness,” from the ruling, filed Monday morning. “According we REVERSE the judgement of the district court and REMAND with instructions to confirm the award. Chief Judge Katzmann dissents in a separate opinion.”
The NFLPA responded to the ruling via a statement.
“The NFLPA is disappointed in the decision by the Second Circuit. We fought Roger Goodell’s suspension of Tom Brady because we know he did not serve as a fair arbitrator and that players’ rights were violated under our collective bargaining agreement. Our Union will carefully review the decision, consider all of our options and continue to fight for players’ rights and for the integrity of the game.”
"Tom Brady's next step is to make an en banc appeal…those are very rarely granted."
– Gabe Feldman pic.twitter.com/RYQql42WPd
— NFL Network (@nflnetwork) April 25, 2016
The NFL naturally had a different sentiment in their release.
“We are pleased the United States Court of Appeals for the Second Circuit ruled today that the Commissioner [Roger Goodell] properly exercised his authority under the collective bargaining agreement to act in cases involving the integrity of the game. That authority has been recognized by many courts and has been expressly incorporated into every collective bargaining agreement between the NFL and NFLPA for the past 40 years.”
Highlight from the Second Circuit’s ruling:
Our view of the record yields the firm conclusion that the Commissioner properly exercised his broad discretion to resolve an interview controversy between the league and a player. Accordingly, we REVERSE the judgment of the district court and REMAND with instructions to confirm the award. For a number of reasons, the Association’s assertion to Brady lacked notice that the destruction of the cell phone would be an issue in the arbitration has no support in the record. The league’s letter to Brady notifying him of his suspension pointed to Brady’s ‘failure to cooperate fully and candidly with the investigation including by refusing to produce any relevant electronic evidence (emails, texts, etc.).’
Having been given clear notice that his cooperation with the investigation was the subject of significant interest, we have difficulty believing that either Brady or the Association would have been surprised that the destruction of the cell phone was of importance to the Commissioner.
We find that the Commissioner was within his discretion to conclude that Brady had ‘participated in a scheme to tamper with game balls’. Because the parties agree that such conduct is ‘conduct detrimental,’ the district court erred in concluding that the Commissioner’s deviation from the Wells Report finding of general awareness was a ground for vacatur.
We do not consider whether the punishment imposed was the most appropriate, or whether we are persuaded by the arbitrator’s reasoning. In short, it is not our task to decide how we would have conducted the arbitration proceedings, or how we would have resolved the dispute. Instead, our task is simply to ensure that the arbitrator was ‘evenly arguably construing or applying the contract and acting within the scope of his authority’ and did not ‘ignore the plain language of the contract.’
The judges did not weigh in on Brady’s guilt or innocence regarding the deflation of footballs in Foxborugh, ruling only on how the NFL managed their discipline process, which gives league commissioner Roger Goodell full authority to levy penalties per the collective bargaining agreement with the Players Association.
“The Commissioner was authorized to impose discipline for, among other things, ‘conduct detrimental to the integrity of, or public confidence, in the game of professional football,'” the ruling stated. “In their collective bargaining agreement, the players and the League mutually decided many years ago that the Commissioner should investigate possible rule violations, should impose appropriate sanctions, and may preside at arbitrations challenging his discipline. Although this tripartite regime may appear somewhat unorthodox, it is the regime bargained for and agreed upon by the parties, which we can only presume they determined was mutually satisfactory.”
The NFLPA’s arguments — Lack of Adequate Notice, exclusion of testimony, etc. — fell on deaf ears for the most part as the court ruled that “each of these grounds is insufficient to warrant vacatur and that none of the Association’s remaining arguments have merit.”
The Court also did not take issue with Goodell using performance enhancing drug violations penalties as a guide to his deciding on a four-game suspension for Brady.
“We are not troubled by the Commissioner’s analogy,” the ruling stated. “If deference means anything, it means that the arbitrator is entitled to generous latitude in phrasing his conclusions.”
Brady’s side may now petition to have the full panel of the Second Circuit hear the case. If that request is denied, or if the panel hears the issue and issues an opinion, the case can be appealed to the U.S. Supreme Court which would most likely not accept this type of case.
Brady’s team could also negotiate with the NFL to get the suspension reduced if he does not accept the penalty.
— Complex Sports (@ComplexSports) April 25, 2016
The four games Brady would miss if the NFL enforces the suspension are Patriots at Arizona Cardinals, Patriots home to face the Miami Dolphins, Houston Texans, and Buffalo Bills. TB12 would return in Cleveland when the Patriots take on the Browns on October 9.
— Fox News (@FoxNews) April 25, 2016
Massachusetts Governor Charlie Baker weighed in on the ruling in a Facebook post.
“The Appeals Court decision reversing the vacating of Tom Brady’s suspension was not unanimous,” Baker wrote. “Here are the last 2 lines of the dissent: ‘…the Commissioner’s murky explanation of Brady’s discipline undercuts the protections for which the NFLPA bargained on Brady’s, and others, behalf. It is ironic that a process designed to ensure fairness to all players has been used unfairly against one player.’
“Sounds about right to me.”
In March, Brady signed a two-year extension with the Patriots that saves TB12 millions if he now accepts the suspension which would not cost him around $235,000.
On March 3, Brady and his top lawyer Jeffrey Kessler had a bad day when the court heard the NFL’s appeal of Judge Richard Berman’s ruling that vacated Goodell’s four-game suspension of the Patriots quarterback.
NFL attorney Paul Clement had stressed that Goodell was well within his rights to impose the four-game suspension on Brady. Clement also said that Brady’s destroying of his mobile phone was an “out and out obstruction.”
When asked if Goodell could have suspended Brady for a year for his involvement in the controversy, Clement said “yes” and added, “I would be up here defending him.” Clement went on to further state that Goodell found Brady’s testimony not to be credible, adding that the court should not “second guess” that finding.
Judge Barrington D. Parker gave the Brady side a glimmer of what turn out to be false hope by asking whether the punishment could be called a “draconian penalty.” Parker also questioned whether you could gain an advantage from using an underinflated football.
Text between McNally & Jastremski: “Make sure you blow up the ball to look like a rugby ball so tom can get used to it before Sunday”
— Andrew Abramson (@AbramsonPBP) May 6, 2015
Next up was an animated Kessler who took body shot after body shot from the judges. The judges however seemed to buy into the NFL’s theory on the infamous destruction of Brady’s mobile phone which contained nearly 10,000 messages.
“Anyone within 100 yards of this would have realized that the cell phone issue raised the stakes in this thing,” Judge Parker said when going after Kessler. The judge went on to say that Brady’s explanation about destroying his phone “made no sense whatsoever.”
‘‘An adjudicator looking at these facts, it seems to me, might conclude that the cellphone had incriminating information on it and that, in the teeth of an investigation, it was deliberately destroyed,’’ Parker said. ‘‘So why couldn’t the commissioner suspend Mr. Brady for that conduct alone? … With all due respect, Mr. Brady’s explanation of that made no sense whatsoever.”
Judge Denny Chin then dropped the bombshell of the day by saying the NFL’s evidence of ball tampering was “compelling, if not overwhelming” and there was evidence to support a finding that Brady ‘‘knew about it, consented to it, encouraged it.’’
Woah. Judge Chin says evidence of ball tampering was “compelling, if not overwhelming.”
— Max Stendahl (@MaxLaw360) March 3, 2016
‘‘How do we as appellate judges reviewing an arbitrator’s decision second-guess the four-game suspension?’’ Chin asked Kessler.
According to most of the reporters covering the case, judges Parker and Chin seemed to favor the NFL. That’s all Goodell apparently needed to win the appeal. Chief Judge Robert A. Katzmann was not as harsh on Brady’s team but also said that the language of the CBA gives Goodell power over “conduct detrimental” which they ultimately agreed upon.
Parker: Brady’s explanation about cell phone “made no sense whatsoever.” Chin says it didn’t add to punishment. They’re being tough on Brady
— Max Stendahl (@MaxLaw360) March 3, 2016
In the meantime, Jimmy Garoppolo needs to put out the call to his receivers as he may now be the Patriots starting quarterback for the first four games next season.
On March 21, Patriots owner Robert Kraft told the assembled media at the NFL owners meetings in Boca Raton, Fla., that he “personally wrote a letter to” NFL Commissioner Roger Goodell last month stating the team’s case why Goodell should return the two draft picks the Patriots lost in the wake of Goodell’s Deflategate ruling. Kraft said the letter was responding to Goodell’s past comment that “if any new facts came up, he would take them into consideration.” Goodell docked the Patriots their first round pick this year and a fourth round pick in the 2017 draft. Patriots Nation has been up in arms about it, especially now that the draft draws near.
“I personally believe that when the league made their decision, they did not factor in the Ideal Gas Law,” Kraft said. “They admitted that publicly. They had a full year of being able to observe Tom Brady play with all the rules of whatever the NFL was, and make any judgments there. We have laid it out pretty straightforward and now it’s up for them to decide.”
Earlier in March, the Patriots released an update to their “The Wells Report in Context” webstite with a new entry titled “The Background and Myths of Deflategate — Separating Fact From Fiction’’ that defends the team against the NFL and Goodell. The entry contains 15 “myths” written to challenge the NFL’s Deflategate allegations.
One of the myths insistes “this situation would have been brought to a quick close if the League had even a general awareness of the scientific impact of temperature and weather conditions on the PSI of footballs at the time of the AFC Championship Game.’’
When pressed on the never-ending controversy at the Boca Raton resort, Kraft admitted he is still thinking about the lost draft picks.
“I pray and desire the draft picks back,” said Kraft. “We understand the importance of having the picks back. We have done everything we can.” Kraft did not say if he received a response from Goodell and said the case is in the hands of the league.
Kraft indicated that he didn’t sense that his fellow owners were interested in challenging the commissioner to overturn the penalties.
Dirty Water Sports’ Alan Miller contributed to this report.