Reply – Re: DEFLATEGATE
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Re: DEFLATEGATE
— by Ted Ted
https://cbsboston.files.wordpress.com/2016/05/final-request-for-rehearing-second-circuit.pdf

RULE 35(B) STATEMENT

This case arises from an arbitration ruling by NFL Commissioner Roger Goodell that undermines the rights and expectations of parties to collective bargaining agreements, and runs roughshod over the rule of law. Goodell superintended a multimillion-dollar investigation into purported football deflation during the 2015 AFC Championship Game—an investigation he falsely portrayed as independent. The NFL then used the findings of that investigation to impose a severe and unprecedented punishment on New England Patriots quarterback Tom Brady based on his supposed “general awareness” of misconduct by team employees. When Brady exercised his right under the collective bargaining agreement to appeal the punishment, Goodell appointed himself as the arbitrator and “affirmed” the punishment he had himself imposed.

Goodell’s biased, agenda-driven, and self-approving “appeal” ruling must be vacated. Although his arbitral authority was contractually limited to hearing appeals of disciplinary decisions, Goodell upheld Brady’s punishment based on different grounds that were not the basis for his original disciplinary decision. In doing so, Goodell did not even mention or discuss the collectively bargained penalties for equipment-related violations—the very misconduct he alleged. A divided panel of this Court affirmed Goodell in a decision that repudiates longstanding labor law principles and that, if left undisturbed, will fuel unpredictability

in labor arbitrations everywhere and make labor arbitration increasingly capricious and undesirable for employers and employees alike.

Rehearing is warranted because the panel opinion conflicts in two key respects with decisions of the Supreme Court and decisions of other circuits. First, the panel held that the Commissioner acted within his authority when he affirmed Brady’s suspension based on new grounds that were not part of the disciplinary decision on appeal. It concluded that “[n]othing in [the CBA] limits the authority of the arbitrator to . . . reassess the factual basis for a suspension.” Slip op. 20. That holding conflicts with Stolt-Nielsen S.A. v. Animal Feeds International Corp., 559 U.S. 662, 684 (2010), which holds that an arbitrator’s authority depends on an affirmative grant of authority by the parties—not the agreement’s silence or an absence of explicit limits on the arbitrator’s power.

Chief Judge Katzmann had it exactly right when he explained that when the Commissioner “changes the factual basis for the disciplinary action after the appeal hearing concludes,” he “exceeds his limited authority under the CBA to decide ‘appeals’ of disciplinary decisions.” Slip op. 1 (dissent). The majority’s holding also conflicts with the bedrock labor-law principle that “the correctness of a [sanction] must stand or fall upon the reason given at the time of [the sanction],” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 40 n.8 (1987), rather than a post hoc rationalization or “reassess[ment],” slip op. 20, on appeal.


Second, it is undisputed that the Commissioner completely ignored the collectively bargained schedule of penalties for equipment-related violations—key provisions that are directly relevant to the alleged misconduct, and that the NFL has acknowledged are “potentially applicable.” NFL Br. 43. As Chief Judge Katzmann observed, these provisions would have limited the discipline or provided highly relevant benchmarks requiring a reduced sanction. Yet the majority refused to vacate the award, concluding that requiring the Commissioner to at least consider these collectively bargained penalties would not be “consistent with our obligation to afford arbitrators substantial deference.” Slip op. 18. That holding squarely conflicts with Boise Cascade Corp. v. Paper Allied-Industrial, Chemical & Energy Workers (PACE), 309 F.3d 1075 (8th Cir. 2002), which holds that vacatur is warranted where, as here, “an arbitrator fails to discuss a probative contract term, and at the same time offers no clear basis for how he construed the
contract to reach his decision without such consideration.” Id. at 1084 (quotation
omitted); see also id. at 1084 n.9 (collecting cases).

The panel decision will harm not just NFL players, but all unionized workers who have bargained for appeal rights as a protection—not as an opportunity for management to salvage a deficient disciplinary action by conjuring up new grounds for the punishment. The panel decision will also harm management by freeing labor arbitrators from collectively bargained limitations on their authority,