In a highly anticipated decision, a federal court judge vacated NFL Commissioner Roger Goodell’s (“Goodell”) four-game suspension of New England Patriots quarterback Tom Brady (“Brady”). On May 11, 2015, the NFL suspended Brady for his role in the Patriots use of under-inflated footballs in the 2014 AFC Championship Game and Brady’s subsequent failure to cooperate with the NFL’s investigation.
The NFL suspended Brady under the applicable collective bargaining agreement (“CBA”). CBAs generally contain processes, which culminate in binding arbitration, for employees to appeal discipline. Once the arbitrator renders a decision, that decision is virtually untouchable. However, parties may appeal arbitration awards to the courts under the Federal Arbitration Act (“FAA”). The FAA provides very limited grounds upon which a court may vacate an arbitration decision. Such instances include when arbitrators refuse to hear “evidence pertinent and material to the controversy” or are not impartial.
In this case, Brady first challenged his suspension though the arbitration process which Commissioner Goodell, acting as the arbitrator, denied. However, Brady had better luck in the court system. A federal court vacated Brady’s discipline because the NFL gave Brady a) inadequate notice of potential discipline, b) inadequate opportunity to examine one of two lead investigators, and c) inadequate access to evidence during his arbitration proceeding.
The court first held that the NFL gave Brady inadequate notice of his potential discipline. In reviewing arbitration rulings, courts consider whether the arbitrator’s decision arises from the CBA. The arbitrator must interpret the CBA in accordance with the “industrial common law,” which entails providing advance notice of prohibited conduct and potential discipline. Here, the NFL gave Brady inadequate notice on four bases. First, NFL policy did not give Brady notice that he could receive a four-game suspension for general awareness of tampering or failing to cooperate with an investigation. Second, no NFL policy or precedent provided notice that a player could receive discipline for general awareness of another person’s alleged misconduct. The NFL based its discipline on the independent investigatory report (“Wells Report”), which concluded Brady was “generally aware” of the alleged tampering. Third, Brady did not have notice that he could receive a suspension, as opposed to a fine. The NFL suspended him under the Competitive Integrity Policy, which only provided notice to owners, executives, and head coaches. Finally, Goodell improperly relied on the CBA’s broad “conduct detrimental” policy to discipline Brady instead of specific Player Policies. Since Goodell did not provide sufficient notice, the court concluded he “dispense[d] his own brand of industrial justice.”
In addition, the court concluded the NFL violated the FAA by refusing to afford Brady the opportunity to confront one of the lead investigators. Jeff Pash, an NFL Executive Vice-President and General Counsel, served as co-lead on the Deflategate investigation (“Pash/Wells Investigation”) and reviewed/edited the Wells Report prior to its release. However, the NFL refused Brady’s request to cross-examine Pash at the arbitration proceeding. The court concluded this was “fundamentally unfair” and prejudiced Brady because 1) it foreclosed Brady from exploring whether the Pash/Wells Investigation was truly “independent” and how/why the NFL’s General Counsel could edit an independent report, and 2) no other witness was competent to address the substantive core of Brady’s claim (that the NFL shaped the “independent” investigation). Therefore, the court determined that Brady’s inadequate opportunity to present evidence and arguments warranted vacating the arbitration decision under the FAA.
Finally, the court concluded Commissioner Goodell improperly denied Brady equal access to investigative files during the arbitration process. Prior to the arbitration hearing, Commissioner Goodell rejected Brady’s request to review the documents and notes which served as the basis for the Wells Report. The court concluded this decision was fundamentally unfair and prejudiced Brady in violation of the FAA. The court noted the NFL’s counsel had greater access to “valuable impressions, insights, and other investigative information” because its role changed from independent investigator to arbitration hearing counsel. Brady’s inability to access the investigative files prejudiced him on multiple grounds: he did not have access to the interview notes (the basis for the Wells Report); and, he did not have the chance to examine and challenge materials (which likely led to the investigation and facilitated the NFL’s cross-examination of Brady). Therefore, Goodell failed to ensure each party had full and timely access to the same relevant documentary evidence.
Whether your workplace is unionized or not, there are several takeaways from this decision:
- Employers should ensure that employees have sufficient notice of potential disciplinary consequences for certain types of conduct;
- Employers should discipline employees on specific policies, not general guidance or principles;
- In an arbitration proceeding, employers should not withhold evidence requested by the employee if that is the evidence the employer will rely on during the hearing; and,
- When utilizing an independent investigation, employers should not attempt to alter the findings of that investigator.
*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment law and the head of the firm’s Labor, Employment and Sports Law Groups, has extensive experience counseling employers on labor relations, employee discipline, the Federal Arbitration Act and sports related issues. For more information about the Deflategate decision or your labor, employment or sports law needs, please contact Stephen Zashin | ssz@zrlaw.com | 216.696.4441