Been a subscriber to the Fort since about 2007 (LSA Class of '71. I have also been a FINRA arbitrator for almost 20 years, and have extensive experience with the law of arbitration appeals as a practicing member of the Bar of many states including New York. I have read and am familiar with the terms of the union contract at issue. The keys to the Judge’s decision lies in a statute, the Federal Arbitration Act, 9 U.S.C. Section 10, setting forth the specific limited grounds for overturning an arbitration ruling made under the Act’s jurisdiction, and will be the focal point of the Judge’s opinion … guaranteed:
“ (a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” (Emphasis added)
Tom Brady’s best case lies with Section (a)(3) because it is the most clean-cut ground that Judge Berman really has a hard time getting around. The Commissioner refused to allow testimony from a percipient witness with information relevant to the dispute. Arbitrations do get overturned on this ground. It does not come up much on appeals because arbitrators tend to allow any witness to testify even if remotely relevant to avoid getting overturned on appeal. Behind closed doors, arbitrators have such discussions to avoid these situations. A proper legal ruling should have Tom Brady winning on (a)(3), and the Award vacated, on this ground alone.
Once the Judge has made this correct ruling (IMHO), he wants to avoid being overturned on appeal so he will start throwing in the proverbial “kitchen sink” to establish other warranted grounds created by Goodell’s decision to appoint himself as arbitrator of the validity of his own findings of a violation and the required punishment. While the contract with the Player’s Association allows Goodell to wear the “arbitrator’s hat,” every contract under New York law has an “implied covenant of good faith and fair dealing.” Once Goodell chose to supplant an independent arbitrator, and appoint himself as both prosecutor, jury, judge and then as arbitrator in an appeal from the findings (permitted by the contract although very unorthodox), Goodell’s actions could still demonstrate unpermitted actual bias not authorized by the union agreement if violating “good faith and fair dealing” (as he did, shown below). Thus a violation of Section (a)(4) occured because Goodell “imperfectly executed” the “mutual” agreement upon which his powers were based. Goodell’s decisions constituted a breach of the Player’s union agreement.
A second potential basis under (a)(4) for vacating the award also deals with the terms of the union agreement, this time about levels of punishment, with specified monetary fine limits for equipment violations. Arguably, the union never had notice that any violations involving air in footballs would be anything other than an “equipment” violation with a mere monetary fine. Thus, Goodell would have exceeded his powers as arbitrator. There is, however, ambiguous reference to the Commissioner also finding grounds for penalties for “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” A Court will insist upon a reasonable interpretation of that clause because the contract was mutually negotiated by high-powered lawyers with the wording unlikely will be presumably construed against either party as sole author of the ambiguous language. This argument could go either way.
This brings us to violations of Section (a)(1)(“undue means”) and Section (a)(2) (“evident partiality”), which seem to go together in this case. The “evident” in “evident partiality” is the emphasis. Goodell is “partial” and “biased” ipso facto because his people did the investigation and drafting and were his lawyers falling behind the “attorney client privilege” with Goodell as the client. Goodell could have let an independent arbitrator rule, but elected (per the union contract authorization) to appoint himself. It appears as a “railroading” and a “kangaroo court” on the surface but is still legal so long as there is no “evident partiality”, or violations of “good faith and fair dealing.” On that score, Judge Berman has already hit upon several of these “evident” factoids. The most glaring, in my view, in the “quantum leap” of Goodell finding Brady running an active conspiracy to deflate balls when: (1) there is no direct evidence that Brady was involved, (2) the science seems to indicate that any deflation was from environmental causes, so maybe no violation even occurred), (3) the Wells Report contained instead a “more likely aware than not” finding (or words to that effect), (4) Goodell later publicly misrepresented Brady’s response to questions during the arbitration in an apparent effort to smear Brady (before the confidential transcript was unexpectedly released), and (5) the Section (a)(3) findings re-emerge because Goodell refused to allow a crucial witness to testify (his own legal counsel with percipient information) and was thus guilty of “misbehavior”. Goodell seemed required to allow full transparency of his possible motives and biases once he chose to wear all those “hats.” This “evident partiality” ground is not as strong as a Section (a)(3)finding, but it is a great backup,
The key argument for the NFL is that an arbitrator’s findings must be given deference even if wrong on the facts. The NFL is correct that courts across the United States allow arbitrators to be allowed to get it wrong on the facts … and even wrong on the law … and will not normally overturn an arbitration award for being wrong on the law or the facts. Almost all appellants of arbitrations cry out that the arbitrators got the facts wrong, and those appeals fall every time, accounting for the statistics that all the sports reporters are citing for an edge favoring the NFL. The Steve Garvey case, cited by the NFL, was obviously correct … but that case dealt with the supposedly irrational factual findings of an independent arbitrator, not subject to attack as unbiased. Nobody will give deference to findings by an arbitrator with “evident partiality.” If Brady wins on Sections (a)(3) or (a)(4), or even (a)(1) or (a)(2), the Court will never need to reach the issue of deference to arbitrator findings. It would be a moot point.
The only obstacle to Brady winning a clear-cut victory is his destruction of the cellphone. The union says it is not part of the union agreement that any player turn over a cell phone. Despite the rationale that Brady had for its destruction, the Court should consider the doctrine of “spoliation” where adverse inferences or monetary sanctions can be taken against a party that destroys material evidence. In the relatively recent past, I have done research memos on this subject under New York law involving a major New York arbitration. If the Court determines that cooperation with an NFL investigation is assumed in the contract, and that Brady’s actions to destroy evidence were unreasonable and constituted a “spoliation,” an arbitrator can impose a monetary or other reasonable sanction. This could be one way that Judge Berman vacates the arbitration award on the Inflategate grounds but approves some level of “sanctions” for non-cooperation. It would them get into the severity of the sanction, as anticipated in the union contract, for this type of violation. Unfortunately, the Court can only “modify” an arbitration award under 9 USC Section 11 “if the change does not affect the merits of the controversy.” Thus, it may come down to all or nothing. Judge Berman might, however, take a liberty and allow some fine to stand for the purported violation, and may reduce the suspension or allow only a fine in a Solomonistic approach that I would favor.
Many people want Deflategate to go away, and think it will with a Tom Brady win. Think again. The media has been talking about appeals dragging it out. Assuming no settlement, if Brady wins before Judge Berman, the more likely end-game will be a “do-over” as we used to call it in Brooklyn. See 9 USC Section(b): “If an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.” If a re-hearing occurs, expect Goodell to appoint an independent arbitrator. Brady deserved a fair hearing and was denied it, in my view.
Out-on-a-limb prediction: Award vacated, with new arbitration ordered.
Second prediction, UM 28 (two touchdowns from special teams/defense) Utah 21. Go Blue!!
“ (a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” (Emphasis added)
Tom Brady’s best case lies with Section (a)(3) because it is the most clean-cut ground that Judge Berman really has a hard time getting around. The Commissioner refused to allow testimony from a percipient witness with information relevant to the dispute. Arbitrations do get overturned on this ground. It does not come up much on appeals because arbitrators tend to allow any witness to testify even if remotely relevant to avoid getting overturned on appeal. Behind closed doors, arbitrators have such discussions to avoid these situations. A proper legal ruling should have Tom Brady winning on (a)(3), and the Award vacated, on this ground alone.
Once the Judge has made this correct ruling (IMHO), he wants to avoid being overturned on appeal so he will start throwing in the proverbial “kitchen sink” to establish other warranted grounds created by Goodell’s decision to appoint himself as arbitrator of the validity of his own findings of a violation and the required punishment. While the contract with the Player’s Association allows Goodell to wear the “arbitrator’s hat,” every contract under New York law has an “implied covenant of good faith and fair dealing.” Once Goodell chose to supplant an independent arbitrator, and appoint himself as both prosecutor, jury, judge and then as arbitrator in an appeal from the findings (permitted by the contract although very unorthodox), Goodell’s actions could still demonstrate unpermitted actual bias not authorized by the union agreement if violating “good faith and fair dealing” (as he did, shown below). Thus a violation of Section (a)(4) occured because Goodell “imperfectly executed” the “mutual” agreement upon which his powers were based. Goodell’s decisions constituted a breach of the Player’s union agreement.
A second potential basis under (a)(4) for vacating the award also deals with the terms of the union agreement, this time about levels of punishment, with specified monetary fine limits for equipment violations. Arguably, the union never had notice that any violations involving air in footballs would be anything other than an “equipment” violation with a mere monetary fine. Thus, Goodell would have exceeded his powers as arbitrator. There is, however, ambiguous reference to the Commissioner also finding grounds for penalties for “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” A Court will insist upon a reasonable interpretation of that clause because the contract was mutually negotiated by high-powered lawyers with the wording unlikely will be presumably construed against either party as sole author of the ambiguous language. This argument could go either way.
This brings us to violations of Section (a)(1)(“undue means”) and Section (a)(2) (“evident partiality”), which seem to go together in this case. The “evident” in “evident partiality” is the emphasis. Goodell is “partial” and “biased” ipso facto because his people did the investigation and drafting and were his lawyers falling behind the “attorney client privilege” with Goodell as the client. Goodell could have let an independent arbitrator rule, but elected (per the union contract authorization) to appoint himself. It appears as a “railroading” and a “kangaroo court” on the surface but is still legal so long as there is no “evident partiality”, or violations of “good faith and fair dealing.” On that score, Judge Berman has already hit upon several of these “evident” factoids. The most glaring, in my view, in the “quantum leap” of Goodell finding Brady running an active conspiracy to deflate balls when: (1) there is no direct evidence that Brady was involved, (2) the science seems to indicate that any deflation was from environmental causes, so maybe no violation even occurred), (3) the Wells Report contained instead a “more likely aware than not” finding (or words to that effect), (4) Goodell later publicly misrepresented Brady’s response to questions during the arbitration in an apparent effort to smear Brady (before the confidential transcript was unexpectedly released), and (5) the Section (a)(3) findings re-emerge because Goodell refused to allow a crucial witness to testify (his own legal counsel with percipient information) and was thus guilty of “misbehavior”. Goodell seemed required to allow full transparency of his possible motives and biases once he chose to wear all those “hats.” This “evident partiality” ground is not as strong as a Section (a)(3)finding, but it is a great backup,
The key argument for the NFL is that an arbitrator’s findings must be given deference even if wrong on the facts. The NFL is correct that courts across the United States allow arbitrators to be allowed to get it wrong on the facts … and even wrong on the law … and will not normally overturn an arbitration award for being wrong on the law or the facts. Almost all appellants of arbitrations cry out that the arbitrators got the facts wrong, and those appeals fall every time, accounting for the statistics that all the sports reporters are citing for an edge favoring the NFL. The Steve Garvey case, cited by the NFL, was obviously correct … but that case dealt with the supposedly irrational factual findings of an independent arbitrator, not subject to attack as unbiased. Nobody will give deference to findings by an arbitrator with “evident partiality.” If Brady wins on Sections (a)(3) or (a)(4), or even (a)(1) or (a)(2), the Court will never need to reach the issue of deference to arbitrator findings. It would be a moot point.
The only obstacle to Brady winning a clear-cut victory is his destruction of the cellphone. The union says it is not part of the union agreement that any player turn over a cell phone. Despite the rationale that Brady had for its destruction, the Court should consider the doctrine of “spoliation” where adverse inferences or monetary sanctions can be taken against a party that destroys material evidence. In the relatively recent past, I have done research memos on this subject under New York law involving a major New York arbitration. If the Court determines that cooperation with an NFL investigation is assumed in the contract, and that Brady’s actions to destroy evidence were unreasonable and constituted a “spoliation,” an arbitrator can impose a monetary or other reasonable sanction. This could be one way that Judge Berman vacates the arbitration award on the Inflategate grounds but approves some level of “sanctions” for non-cooperation. It would them get into the severity of the sanction, as anticipated in the union contract, for this type of violation. Unfortunately, the Court can only “modify” an arbitration award under 9 USC Section 11 “if the change does not affect the merits of the controversy.” Thus, it may come down to all or nothing. Judge Berman might, however, take a liberty and allow some fine to stand for the purported violation, and may reduce the suspension or allow only a fine in a Solomonistic approach that I would favor.
Many people want Deflategate to go away, and think it will with a Tom Brady win. Think again. The media has been talking about appeals dragging it out. Assuming no settlement, if Brady wins before Judge Berman, the more likely end-game will be a “do-over” as we used to call it in Brooklyn. See 9 USC Section(b): “If an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.” If a re-hearing occurs, expect Goodell to appoint an independent arbitrator. Brady deserved a fair hearing and was denied it, in my view.
Out-on-a-limb prediction: Award vacated, with new arbitration ordered.
Second prediction, UM 28 (two touchdowns from special teams/defense) Utah 21. Go Blue!!
