Deflategate and the Rule of Law

In September 3, federal judge Richard Berman overturned Roger Goodell’s suspension of Tom Brady and upended professional sports. Unless this decision is overturned by a higher court, an unlikely possibility, any notion that Commissioner Goodell, or any other sports “czar,” is all-powerful has been put to rest.

You don’t have to be a sports fan to find this case interesting. This is Tom Brady, after all, the Patriots superstar quarterback, married to Giselle Bundchen, the superstar model. These people live in a world the rest of us can hardly imagine. And, until last year’s Patriots-Colts playoff game discovery of footballs inflated below the league’s requirement of 12.5 psi, their lives seemed perfect. Then the luster that is Tom Brady was suddenly dimmed by a scandal that centered on him, and the word “cheat” appeared in the media. Some days it was hard to hear about anything else on the television news cycle.

Why did the judge reverse Brady’s suspension? As the judge explains it in his 40-page written opinion, the “law of the shop” is that professional football players are entitled to advance notice of prohibited conduct and of potential discipline. The NFL, and Goodell in particular, fell woefully short of meeting this standard. No one ever informed Tom Brady that a “general awareness” of improper ball deflation by others, or failure to turn over his cell phone to investigators, could sideline him for a quarter of the season. Further, the judge was clearly ticked off by Goodell’s attempt to compare what Brady did or knew with an earlier four-game suspension of a player who used performance enhancing drugs. The league’s steroid policy is “sui generis” (in a class by itself), according to the judge, and as a matter of law “cannot serve as adequate notice of discipline to Brady.”

The key language of the decision is that a professional football player’s right to be given advance notice “is at the heart of our criminal and civil justice system.” In other words, an authority with power to discipline, such as the Commissioner of the NFL, can’t make up rules on the spot and then impose severe penalties on someone who supposedly committed a wrong called “general awareness” that no one ever heard of before.

This isn’t the only reason for the judge’s ruling. He found that the arbitration proceedings conducted by Commissioner Goodell were fundamentally unfair in other ways as well. For one thing, Goodell denied Brady access to documents on which the NFL investigators relied. For another, he wouldn’t allow Brady to compel testimony from a senior NFL executive and General Counsel named Jeff Pash, who was the league’s “co-lead investigator” along with outside counsel Theodore Wells. In Judge Berman’s view, these limitations on Brady’s defense were not only unfair but also highly prejudicial.

The lack of notice, however, goes to the very heart of fairness under our system of justice.   Whether we like Tom Brady or not (who doesn’t?), whether we even care about the Patriots (don’t all stand up at once), we should all be reassured that the courts are available and open to ensure that the rules of the game are fair.

Maybe this case explains why Tom Brady is such a great football player. No one intimidates him. He doesn’t give up easily. And he’s not afraid to throw the long ball.

2017-05-19T20:27:32+00:00By |