I’m a labor lawyer; so this litigation falls within my area of specialization. Although reading about the Second Circuit’s standard for vacating arbitration awards cheered me up a bit, I still remain, on the whole, pessimistic about the outcome of this litigation primarily because of what I perceive to be was—from a purely legal point of view—a misstep by the NFLPA in agreeing with the NFL to have the case decided solely on the basis of the arbitration record. As I see it, the only way that Brady and the NFLPA could get Goodell’s arbitration award overturned would be to prove that Goodell was not an impartial arbitrator. Courts give arbitrators wide latitude in interpreting collective bargaining agreements. The test that the Supreme Court has devised for determining whether an arbitration award should be affirmed or vacated in lawsuits brought under Section 301 of the Labor Management Relations Act, as the NFLPA’s counterclaim is, is whether the arbitrator was even “arguably” interpreting the contract or whether he was dispensing “his own brand of industrial justice.” The opinion that Goodell issued seems pretty unassailable from that perspective. However, arbitrator bias is always a reason for vacating an arbitration award no matter how good the arbitrator’s written opinion looks.
Proving arbitrator bias seemed quite doable in this case. There is abundant evidence that the whole process was driven by an agenda by Goodell and others in the NFL’s headquarters to get Brady and the Patriots—from the leak of false information to Mortenson, to the failure to correct Mortenson’s report despite the fact that Brady and the Patriots were getting hammered in the press in the run-up to the Super Bowl, the transmission of false PSI information to the Patriots, the insistence that the Patriots not release the correct PSI figures after they were given them, the league’s persistent refusal to divulge the correct PSI figures to the public despite repeated requests by the Patriots to do so, the refusal by the league to have the Wells firm investigate the NFL’s conduct, the perversely one-sided nature of the Wells Report, Goodell’s delay in issuing the arbitration award, and the leak of information to Steven A. Smith immediately before issuing his arbitration award that Brady had destroyed his cell phone. Goodell has acted more like the adverse party in a lawsuit than an independent arbitrator. The facts surrounding all this would have been discoverable. In fact, a good case could have been made that the NFL’s communications with the Wells firm regarding Deflategate were discoverable, since the NFL has claimed that it solicited the Wells firm’s assistance not for legal advice, but to do an independent investigation.
By agreeing with the NFL to have the case decided on the basis of the arbitration record alone, however, the NFLPA has traded away much of its ability to establish arbitrator bias. Although the arbitration record reflects that the arbitrator was also the one that imposed the initial penalty, I don’t think that is enough to establish bias, as the collective bargaining agreement contemplates that may happen. And although the NFLPA presented evidence that the Wells Report was biased, that does not establish that Goodell was biased and Goodell mentioned in his arbitration award that he made an independent assessment of the facts. Thus, the NFLPA exchanged what I thought was a winning hand for a losing hand.
Why did the NFLPA do that? Perhaps Brady wanted the case resolved before the start of the season. If so, Goodell would have been rewarded for dragging this case out until the beginning of training camp.
It’s not all gloom and doom. The tide of opinion regarding this case in the national media, if not our local sports media, has turned in favor of Brady and the Patriots. Reports that the NFL doesn’t want the arbitration record released to the public are also intriguing. My only point is that concern over the possibility that Judge Berman will vacate Goodell’s arbitration award is much less of a reason for the NFL to compromise now that the parties have agreed to have the case decided on the basis of the arbitration record alone.
