Why Tom Brady Will Lose In Federal Court
I predict Tom Brady’s efforts for an injunction to stop his 4 game suspension will not be successful. Federal judges are reluctant to reconsider the rulings of arbitrators, the evidence of tampering is powerful, and the description of Brady’s attempted cover-up is convincing.
Throughout business and industry, there are agreements to submit disputes to arbitration. It’s a cost efficient way to resolve issues avoiding the expense and the delays of litigation. The importance of arbitration is that it’s final and cannot be reviewed. Brady’s case will be important in evaluating a court’s role in a collectively bargained arbitration process.
Courts and Arbitration
Federal judges understand that arbitrators have considered the evidence. Even when the arbitrator is wrong, most federal judges will not reconsider the ruling. In MLBPA v. Garvey (2001), the Supreme court ruled that even when the arbitrator’s decision is “improvident or even silly,” it does “not provide a basis for a court to refuse to enforce” the arbitrator’s decision.
As Lester Munson writes, U.S. District Court Judge David Doty in Minneapolis, who has presided over NFL litigation for 25 years, reversed punishment imposed on Adrian Peterson. He based his ruling on what he thought was an egregious error by the NFL arbitrator — the application of a new and harsher penalty to an incident that occurred before the adoption of the new penalty. The case is on appeal, and the NFL is likely to prevail in the appeal with the high court reminding Doty that federal judges should stay away from reviews of arbitrators’ rulings.
The NFL is clearly worried that Brady and his lawyers will file their lawsuit in Minneapolis, where NFL players have achieved historic triumphs over the NFL, including several decisions by Doty. The league attorneys filed their lawsuit first in New York, hoping that the league would have a greater chance of success. The league used a procedure known as a declaratory judgment lawsuit in its effort to win the race to choose the ultimate courthouse.
Brady will say he did nothing wrong, that the Wells report established nothing, that the penalty is too harsh, and that Goodell was not a neutral arbitrator. None of these arguments offers a compelling reason for a judge to reverse Goodell’s decision. All of the arguments were raised in detail in the arbitration hearing, and Goodell answered each one of them. Why would a judge reconsider any of them? The NFLPA gave away the idea of a neutral arbitrator when they voluntarily agreed in collective bargaining that the commissioner would make the final decision in conduct detrimental cases.
Brady said there was no need for testimony from John Jastremski and James McNally, the Patriots employees who were involved in the machinations that led to the deflated game balls. At that point, the NFL argues it was entitled to make an “adverse inference” from Brady’s failure to present key witnesses actually finding that both men lacked credibility in the statements they made to Wells. Even Brady admitted that McNally had “more than enough time” during his 100-second visit into a locked bathroom to deflate the balls.
It’s Curtains for Tom
Brady’s refusal to cooperate with the Wells investigators and his destruction of his cell phone on the same day that he was to be interviewed by Wells is damning. To me, it’s clear he tried to hide evidence and was uncooperative with the investigation. Does anyone believe that information from Brady’s destroyed cellphone, if it were available, would not show his direct knowledge of and involvement with Deflategate? I think it would, especially given he concealed for months the fact that he had destroyed the cellphone requested by the investigators.
Brady’s first mistake was a series of phone calls and text messages on the day after the Indianapolis game with Jastremski and a visit with him in the “QB Room.” His biggest mistake was refusing to cooperate with the Wells investigators by turning over his phone and his text messages. Destroying the phone only made it infinitely worse. Finally, similar to the “deflator” referring to weight loss, Brady incredulously said he routinely destroyed his old phones when he purchased a new one. The problem was that the Wells investigators had already found an old phone that Brady had not destroyed. My advice? Take the 4 games Tom.