some great zingers...Kessler is a GOD!
...Goodell’s disdain for this collectively bargained remedy did not give him the
right to “dispense his own brand of industrial justice.”
...To appreciate the extraordinary overbreadth of the NFL’s position, one need
only consider its logical bounds. The NFL’s position would authorize Goodell to
use his “general authority” to discipline players for “conduct detrimental” to suspend
a receiver for using “stickum” if he believed the collectively bargained and
announced fine for this conduct was too lenient. JA384. Similarly, it would authorize
the Commissioner to impose an eight-game suspension for a first-time steroids
violation if he believed the bargained-for and announced four-game suspension
was too light. The NFL’s position is the antithesis of “deference” to bargained-
for labor-management relations: It is a sweeping grab for power that is
contrary to collectively bargained penalties. No arbitrator may affirm discipline
that so blatantly defies collectively bargained penalties and the required notice.
...The NFL does not discuss the “player equipment policy” until page 43 of
its brief. When it finally does so, it does not dispute that the Policy’s provisions
are “more specific” than Goodell’s “general conduct detrimental authority,” or that
“deflating game balls is an ‘equipment violation.’” Br. 43, 45. The NFL argues
that this is irrelevant because Goodell had “no obligation” to “forgo[] [his Article
46] authority in favor of equipment policies crafted for more minor offenses”—he
simply made a “choice between the two contractual provisions,” each of which was
“potentially applicable.” Br. 45, 43. This is pure sophistry.
...Goodell’s “choice” was to ignore both the applicable fine and the Policy’s repeated notice
that, for equipment violations: “First offenses will result in fines.” JA384.6
....Nothing in the Commissioner’s general conduct detrimental authority allows him to override a collectively bargained fine announced to the players. The fact that the behavior may be “conduct detrimental” does not empower him to “choose” to disregard the parties’ agreement on the penalty or the NFL’s obligation to provide notice. Once it becomes clear that Goodell ignored these CBA requirements, nothing remains of the NFL’s appeal.
...no player reading the Policy’s five unambiguous assurances that “First offenses will result in fines” could plausibly have notice of a suspension for first-time equipment tampering.
...It is no answer for the NFL to assert Goodell’s award transformed Brady’s
alleged state of mind into “participat[ion]” in a conspiratorial “scheme” in which
he “induce[d]” ball tampering. Compare JA329 with SPA51, 54. Although
Goodell used the word “scheme” fourteen times, it appears nowhere in the 139-
page Wells Report. Goodell’s “quantum leap” (JA1458) in using these words
“[wa]s wholly inconsonant with his fact-finding, [suggesting] that he was not fulfilling his obligation to interpret and apply the parties’ agreement.”
CONCLUSION
Judicial deference to arbitration awards is not equivalent to a rubber stamp.
Courts must vacate awards where the arbitrator defies the essence of the CBA by
declining to discuss the applicable collectively bargained penalty in favor of his
own brand of industrial justice. The award here sustained discipline imposed
without notice and did so without regard to fundamental standards of procedural
fairness. The judgment below should be affirmed.
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