DeflateGate: The Elephant in the Courtroom


“The Court is fully aware of the deference afforded to arbitral decisions, but, nevertheless, concludes that the Award should be vacated.”

The ruling heard around the world. 

What did it say, and, more importantly, what did it stay silent on?

Talk the Talk

“In view of the Court's determinations regarding the inadequacy of notice and discovery afforded to [Tom] Brady, the Court does not reach Brady's other claims.”

Focusing exclusively on procedure, Judge Richard M. Berman explicitly avoided ruling on perhaps the most hotly contested issue of all: what’s the deal with Roger Goodell?

Goodell’s dual role as commissioner and arbitrator has been questioned time and time again, and the need for clarification is clear. Brady even addressed this issue by claiming Goodell, as arbitrator, “was ‘evidently partial’ within the meaning of 9 U.S.C. § I0(a)(2).”

But the ruling provided no additional information to assist in defining Goodell’s role.

Eerily similar, Judge David S. Doty in the Adrian Peterson case also explicitly refrained from discussing the elephant in the room while vacating Harold Henderson’s arbitration award.

The NFL had selected Henderson, a former NFL Executive, to serve as “neutral” arbitrator and review Goodell’s discipline of Peterson. Like Goodell, Henderson then rejected the NFLPA’s request for recusal. And despite Peterson’s claim regarding arbitrator bias, Doty concluded “the court need not decide whether Henderson was evidently partial.”

So ‘round and ‘round the topic of “evident partiality” proceeded on the legal merry-go-round. Despite Goodell’s role being a hot topic in locker rooms, news rooms, and even court rooms via the players’ claims, the judicial system simply stayed silent, providing no real remedy.

This time around, amidst the chirping of crickets, Goodell emerged with a statement declaring his openness to changing the commissioner’s involvement in player disciplinary proceedings. A light at the end of the tunnel, it seemed. 

Shortly thereafter, Goodell curbed his enthusiasm by clarifying that reform likely would not ensue until the next collective-bargaining round. 

Given the reality of a collective-bargaining agreement extending through the 2020 season, that tunnel now seems a little longer, and the glimmer of hope for reform within the league now shines a little dimmer.

Walk the Walk

To add insult to injury, Major League Baseball recently adopted new policies effectively neutralizing professional sports arbitration by requiring an impartial arbitrator and representatives from each party to form a panel in order to review player disciplinary decisions. 

Not to compare apples to oranges, but the celebrated move by the MLB stands in stark contrast to the NFL’s failure to proactively address evident partiality and further renders the NFL’s continued silence on the subject particularly deafening.

Goodell touched on the formation of a panel for arbitral reviews of disciplinary decisions, stating that despite the involvement of third-party neutral arbitrators in other leagues, “the standards of the N.F.L. are important to uphold” and, therefore, delegation of “that responsibility or standard” is not a good fit for the league.

But Goodell didn’t stop there. He continued to note that one area in which this practice may actually work for the NFL (and presumably for Goodell), is in the initial discipline phase. 

Finally, a picture of the circumstances under which the NFL is willing to concede, in the absence of judicial action, has surfaced. 

Goodell wants out of the discipline game, once and for all. Between the public outcry following his double discipline of Ray Rice, and the controversy over his suspension of Tom Brady, players and fans alike may be pleasantly surprised to discover that a meeting of the minds might actually be possible. 

Arguing for vacation of the award on evident partiality grounds, Brady’s legal team stated that “Goodell was an evidently partial arbitrator” because his “direct involvement in the issues to be arbitrated disqualified him from serving as arbitrator.” 

Remove Goodell from “direct involvement” in the initial discipline phase, so that his focus is solely on appeals and arbitral reviews of discipline, and the days of this reoccurring nightmare of a legal claim might be numbered. While not an ideal fix, it is a concession the NFL is willing to make in an otherwise judicially silent environment.

Entering Overtime

With the NFL filing its notice to appeal Judge Berman’s decision to the United States Court of Appeals for the Second Circuit, we’re already in overtime in terms of the legal drama.

And despite the vacation of the award, there’s no break in sight from this matter

So while we don’t know exactly what the NFL will do, or when the NFL will do it, the league has options. Options that must be exercised outside the courtroom in order to stop the cycle occurring inside the courtroom.

One thing is certain, though. Absent a clarification of Goodell’s role going forward, be prepared for a long, bumpy road to the NFL/NFLPA collective-bargaining season.