New England Patriots’ fans can thank U.S. District Judge Richard M. Berman if and when they see NFL quarterback Tom Brady suiting up next Thursday for the Patriots’ season opener. Judge Berman vacated Brady’s four-game suspension for his alleged role in the 2015 AFC Championship Game’s Deflategate scandal. In July, NFL Commissioner Roger Goodell slapped Brady with the suspension pursuant to the League’s collectively bargained arbitration process. Goodell concluded that Brady not only knew he was playing with non-regulation, deflated footballs, but that he also approved the tampering of the footballs and subsequently destroyed evidence of his participation in the incident. Despite these findings, Judge Berman put Brady back in the game, lifting the suspension on the basis that the NFL deprived Brady of procedural due process during the arbitration proceedings.
Judicial review of arbitration awards is extraordinarily limited. However, courts will reverse decisions where the employer violated fundamental requisites of “fairness” and “due process.” Judge Berman’s 40-page opinion reads as a how-to manual for employers and arbitrators to ensure that the substance of the claims, rather than procedural technicalities, determines the outcome of the litigation.
As Judge Berman explained, the NFL failed to provide Brady with proper due process in at least three critical areas.
- Inadequate Notice: The NFL failed to put Brady on notice that his alleged dishonest behavior could result in the punishment issued: a four-game suspension from the regular season. The court rejected Goodell’s comparison of Brady’s behavior to other players’ use (and attempts to mask this use) of performance-enhancing drugs. The court found Goodell’s analogy inadequate, concluding that Brady had no reason to expect his actions would result in more than a fine. In short, the NFL’s failure to alert players of the potential consequences of specific integrity breaches served as Brady’s get-out-of-jail-free card.
- Denied an Opportunity to Interview a Key Witness: The NFL deprived Brady the opportunity to confront all of his investigators. Specifically, Goodell denied Brady’s motion to compel the testimony of NFL Executive Vice President and General Counsel Jeff Pash, who served as one of the lead investigators into the Deflategate allegations. The attorney-client privilege Pash and the NFL enjoy does not extend to Pash’s actions as a fact investigator.
- Denying Equal Access to Evidence: The NFL unfairly prejudiced Brady by denying him access to certain investigative files. Brady had a right to “examine and challenge materials that may have led to his suspension and likely facilitated…[his] cross-examination.” Discovery is limited in arbitration, but not so limited as to permit employers to pick and choose what non-privileged aspects of the investigation file the employer turns over to the union or employee.
Essentially, Judge Berman overturned Commissioner Goodell’s decision for the same reasons that precipitated Brady’s suspension: improperly manipulating aspects of the game to create an unfair advantage. Just as the NFL requires teams to play by the same rules on the gridiron, federal labor law requires employers to follow the principles of fundamental fairness and procedural due process during an arbitration proceeding.