NBA Considering Location Change for All-Star Game as a Result of North Carolina Bathroom Bill

North Carolina Governor Pat McCory has come under fire recently for his support of House Bill 2 (HB2), the Public Facilities Privacy & Security Act.[1]  The bill, which was pushed through the General Assembly by virtue of a special session[2], was a reaction to Charlotte’s recent ordinance[3] that expanded civil rights to individuals on the basis of martial status, sexual orientation, and gender identity.

imgresAs might have been expected, the public outcry in response to HB2 has been deafening.  American Airlines and Wells Fargo[4], among others, have already been outspoken in their condemnation of HB2, and Bruce Springsteen[5] canceled his scheduled concerts in North Carolina.  But what could be the most financially relevant response to North Carolina is what the National Basketball Association (NBA) will decide to do with regards to its 2017 All-Star Game, which is scheduled to take place next February in Charlotte.

Why HB2 Is Controversial

Governor McCrory touted HB2 as a bipartisan bill[6] that combated the Charlotte ordinance that “defied common sense.”  So what could be the problem?

First off, “bipartisan” is a bit of an overstatement.  Although the bill passed through the Senate by a vote of 32-0[7], the unanimity was a direct result of Senate Democrats walking out of chambers rather than casting a vote.

The crux of the problem with HB2 lies with the bathroom aspect of the bill.  HB2 requires that individuals use the public bathrooms that correspond to their biological sex.[8]  The argument made by Governor McCrory and his defenders is that to allow transgender people to choose their restroom would open the door to sexual assaults in women’s restrooms.[9]  Proponents contend that there is a privacy issue as well as the issue of sexual predators.

However, the transgender community sees a bigger and more pressing problem by enacting HB2.

“If I were to walk into a men’s bathroom, I would either be told that I’m in the wrong bathroom or I’d be outed as a transgender woman,”[10] Lara Nazario, a trans woman from Charlotte, told NPR.  “This can often lead to violence or harassment, especially when there’s no protection in place for people like me.”[11]

In addition to the bathroom problem, HB2 also prevents any future laws like the one in Charlotte, blocking local governments and cities from extending nondiscrimination rights to LGBT (Lesbian, Gay, Bisexual, Transgender) individuals in the future.

Why Should the NBA Care?

Aside from the basic human instinct to care for those individuals who are being taken advantage of, the NBA has a reputation for being an extremely LGBT-friendly organization.

In 2013, the NBA became the first major American sports league to have a homosexual player on an active roster, when Brooklyn Nets center Jason Collins came out.  Former NBA center John Amaechi also came out as gay, though he did so after his playing career concluded, and has gone on to be a very vocal and influential figure in his native Great Britain.

In light of HB2, the NBA released a statement which read in part:  “We are deeply concerned that this discriminatory law runs counter to our guiding principles of equality and mutual respect and do not yet know what impact it will have on our ability to successfully host the 2017 All-Star Game in Charlotte.”[12]

Notables in the NBA community have come out and said the league should move its All-Star Game.  Basketball Hall-of-Famer, 1992 Dream Team member, TNT commentator, and Capital One commercial star Charles Barkley has been one of the most vocal opponents of holding the All-Star game in North Carolina.

“As a black person, I’m against any form of discrimination—against whites, Hispanics, gays, lesbians, however you want to phrase it,” Barkley said.[13]  “It’s my job, with the position of power that I’m in and being able to be on television, I’m supposed to stand up for the people who can’t stand up for themselves.”[14]

Seeing an opportunity to facilitate the NBA’s moving of the All-Star Game, the city of Atlanta introduced a resolution[15] requesting a relocation of the weekend festivities to Atlanta.

“We just wanted to say:  `If you guys are going to take a look at other places, consider us,’”[16] Council President Ceasar Mitchell said.  “We wanted to assure the NBA that Atlanta is open for business, and open to (all) people.”[17]

The prospect of the NBA taking the All-Star Game away from North Carolina is so plausible that when a fake ABC News story ran in early April stating that NBA Commissioner Adam Silver had given North Carolina a thirty-day window to repeal the law or else the game would be moved, multiple reputable sites quoted the fake NBA press release.

What Is Likely To Happen?

Ultimately, the economic and societal backlash that is facing North Carolina should be enough to force Governor McCrory to reconsider HB2 before the NBA needs to make a firm decision.  The threat of losing out on the lucrative February event will give Governor McCrory plenty to think about when considering the future of HB2.  The All-Star Game alone could represent a $200 million windfall to North Carolina, as the game brought $195 million[18] to New York back in 2015.  The business sports provide to states has proven to be a very influential authority when it comes to state laws.  The National Football League was seen as a major force behind compelling Georgia Governor Nathan Deal to veto a similar anti-LGBT[19] law in March.

It is notable that Governor McCrory has already started his retreat, issuing an executive order designed to “reinstate the right to sue in state court for discrimination.”[20]  However, his executive order has not quieted the discontent with HB2.  The American Civil Liberties Union (ACLU), which has already filed a lawsuit, called Governor McCrory’s order, “a poor effort to save face.”[21]  North Carolina Attorney General Roy Cooper has publicly derided HB2 as flatly, “unconstitutional.”[22]

As pressure builds for Governor McCrory, it too is building for Commissioner Silver.  On Thursday April 14, Senators Jeff Merkley (D-OR), Mark Kirk (R-IL), Patrick Leahy (D-VT), Cory Booker (D-NJ), Tammy Baldwin (D-WI) and Patty Murray (D-WA) penned an open letter to Commissioner Silver imploring he move the All-Star Game from Charlotte.  “We cannot condone nor stand idly by as North Carolina moves to legalize and institutionalize discrimination against the LGBT community,” the letter reads.  “Nor should the NBA allow its premier annual event to be hosted in such a state.”[23]

With the public pushback increasing seemingly every day and the economic losses mounting, the most likely outcome here is that the ACLU’s case will never make it to a courtroom, and that Governor McCrory will have to water down his law before the NBA needs to make a final decision on February’s All-Star Game.

[1] Public Facilities Privacy and Securities Act, N.C. Sess. Laws 2016–3, http://www.ncleg.net/Sessions/2015E2/Bills/House/HTML/H2v4.html.

[2] Sandhya Somashekhar, Backlash Builds Against N.C. Law on Transgender Bathroom Use, Washington Post (Mar. 24, 2016), https://www.washingtonpost.com/news/post-nation/wp/2016/03/23/north-carolina-passes-bill-blocking-lgbt-protections/.

[3] Id.

[4] Id.

[5] Tom Kludt, Bruce Springsteen Cancels North Carolina Concert over ‘Bathroom Law’, CNN (Apr. 8, 2016, 6:16 PM), http://money.cnn.com/2016/04/08/media/bruce-springsteen-north-carolina-show-canceled/.

[6] Tal Kopan & Eugene Scott, North Carolina Governor Signs Controversial Transgender Bill, CNN (Mar. 24, 2016, 11:12 AM), http://www.cnn.com/2016/03/23/politics/north-carolina-gender-bathrooms-bill/.

[7] Id.

[8] Id.

[9] Id.

[10] Camila Domonoske, North Carolina Passes Law Blocking Measures to Protect LGBT People, NPR (Mar. 24, 2016, 11:29 AM), http://www.npr.org/sections/thetwo-way/2016/03/24/471700323/north-carolina-passes-law-blocking-measures-to-protect-lgbt-people.

[11] Id.

[12] Dan Klepal, N.C. Governor Takes Aim at Atlanta’s Attempt to Steal 2017 NBA All-Star Game, Atlanta J. Const. (Mar. 30, 2016, 10:04 AM), http://www.ajc.com/news/news/local-govt-politics/atlanta-city-council-bring-2017-nba-all-star-game-/nqt3Y/.

[13] Susanna Kim, Charles Barkley Wants NBA to Move All-Star Game Due to ‘Anti-LGBT’ Law, ABC News (Apr. 7, 2016, 4:51 PM), http://abcnews.go.com/Business/charles-barkley-nba-move-star-game-due-anti/story?id=38229090.

[14] Id.

[15] Klepal, supra 12.

[16] Id.

[17] Id.

[18] Kavitha A. Davidson, Was NBA All-Star Weekend a Financial Winner?, BloombergView (Feb. 18, 2015, 2:52 PM), http://www.bloombergview.com/articles/2015-02-18/was-nba-all-star-weekend-a-financial-winner-.

[19] Jon Schuppe, Georgia Governor to Veto ‘Religious Freedom’ Law as N.C. Is Sued for LGBT Bias, NBC News (Mar. 28, 2016, 5:29 PM), http://www.nbcnews.com/news/us-news/georgia-governor-veto-religious-freedom-law-n-c-sued-lgbt-n546636.

[20] Bill Chappell, N.C. Governor Signs Order That ‘Clarifies’ Controversial Gender Identity Law, NPR (Apr. 12, 2016, 3:03 PM), http://www.npr.org/sections/thetwo-way/2016/04/12/473982918/n-c-governor-signs-order-that-clarifies-controversial-gender-identity-law.

[21] Id.

[22] Id.

[23] Senator Jeff Merkley, A Letter to NBA Commissioner Adam Silver, Medium (Apr. 12, 2016), https://medium.com/@SenJeffMerkley/a-letter-to-nba-commissioner-adam-silver-902e23b61a05#.nndg4wpcx.

Why the NFL Should Re-Consider Goodell’s Role as Judge, Jury, and Executioner

GoodellAmidst the firestorm surrounding the Tom Brady “Deflategate” saga and fallout from highly publicized domestic violence suspensions involving National Football League (NFL) players such as Ray Rice, many have scrutinized Roger Goodell and the broad scope of his power as commissioner of the NFL.[1]  Goodell represents the thirty-two NFL owners’ business interests (to the tune of a $44 million per year salary)[2] and has the authority to suspend players for “conduct detrimental” to the team or league, and then act as mutual arbiter in disputes involving the NFL Players Association (NFLPA) and league.[3]  While the NFL touts that penalties and suspensions are made “for the good of the game,”[4] some challenge Goodell for playing the role of “judge,” “jury,” and “his own executioner”.[5]  This blog highlights where the commissioner’s power comes from, his roles and responsibilities, and how a player may challenge the commissioner’s rulings.  It proposes that it is in the NFL’s best interest to limit Goodell’s authority to act as mutual arbiter.

Where Does the Commissioner Get His Power?

The commissioner’s authority is different with regards to the teams and the players.  Whereas Goodell’s authority to govern and discipline the teams is expressly granted to him by the league constitution,[6] the authority to discipline players for conduct offenses is generally limited to what has been agreed upon in the Collective Bargaining Agreement (CBA).[7]  As the CBA functions as a mutually agreed upon document bargained for by the players (via representation by the NFLPA) and league, the players have granted Goodell such authority.  Goodell’s “unlimited powers of adjudication,”[8] was a concession made during bargaining by the players in order to end the 2011 lockout and achieve other health and safety goals including limiting two-a-day practices.[9]  As Deflategate—which involves challenges to Goodell’s role as mutual arbiter under Article III of the CBA—continues, time will tell how the courts interpret Goodell’s impartiality.  In the meantime, the NFLPA may have to wait to equally bargain for the right to limit Goodell’s authority when the current CBA expires after the 2020 season.[10]

The Commissioner’s Role

A commissioner is necessary to enforce uniform rules and ensure a level playing field.  Without one, there would be no guarantee as to the uniformity and fair adherence to NFL rules.  Deflategate provides an example where Goodell had the authority to discipline the Patriots and Tom Brady for allegedly purposefully under-inflating footballs as it provided a “competitive advantage” on the field.[11]  While the Second Circuit is still deliberating as to whether Brady’s four-game suspension was precedential and made with appropriate advanced notice,[12] it is unchallenged that the commissioner’s has authority to ensure adherence to NFL policies by levying fines, suspensions, and et cetera.

Major League Baseball’s (MLB) collective bargaining agreement is different in a variety of ways, [13] but the MLB’s authority to implement punishments in cases of owner tampering of player trades[14] and player assignments[15] has provided a comparable context of commissioner authority.[16]  In these contexts, federal courts have held that the scope of the commissioner’s authority was broad enough to regulate team and player decisions.[17]  This same rationale has been applied to punishments involving steroid use in the MLB (competitive advantage),[18] and cases involving off the field drug use[19] and domestic violence in the NFL.[20] 

Challenging a Commissioner’s Ruling

While the NFL and NFLPA collectively bargained for Goodell’s power, it gives the commissioner an ability to review his own decisions without third-party oversight.  This differs significantly from the typical arbitration process where a neutral third-party arbiter is appointed by both parties to make a binding decision without preferential treatment to one side.

A player may challenge the commissioner’s ruling in a court of law under the Federal Arbitration Act (FAA),[21] but the U.S. Supreme Court has made clear that “[t]he refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements.  The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.”[22]  While arbitration decisions are given deferential treatment in a court of law, they may be overturned in the event of “evident partiality” on the part of the arbitrator.[23]  “Evident partiality” involves “an arbitrator’s appearance of bias, requiring the arbitrator to disclose to the parties any dealings that might create an impression of bias.”[24]  Courts are reluctant to interfere with private organizations interpreting their own rules, but will intervene in response to “legitimate allegations of bad faith or illegality.”[25]

“Evident partiality” has been the major challenge to Goodell’s decision making, and has been successful in a number of overturned suspensions.  Both the Deflategate and “Bountygate”[26] cases have relied upon the argument made in Morris v. N.Y. Football Giants, Inc.,[27] where the Supreme Court of New York held that the NFL commissioner is not exempt from arbitration requirements, and can lack the neutrality necessary to arbitrate after formerly advocating against the players.[28]  Following an arbiter’s overturning of MLB player Steve Howe’s lifetime ban from baseball in 1992, mutual arbiters place the burden of proof on the commissioner to establish that punishments are “appropriate (and carefully fashioned) given the circumstances and that there is “just cause” for the chosen discipline.[29]

Changes To Come?

Whereas a typical arbiter’s decision is given broad deference in challenges in a court of law, Goodell’s decisions have been overturned a number of times.  Since 2010, Goodell and the NFL have been overruled in indefinite suspensions (Adrian Peterson),[30] one-game bans (Ndumukong Suh),[31] multi-game suspensions (Ray Rice)[32] and in all of the suspensions of the New Orleans Saints involved in Bountygate.[33]  As courts continue to overturn unilateral player suspensions made by Goodell acting in the “best interest” of the league, the NFLPA and NFL should be driven to revise its current “circular system of justice.”[34]

In fact, it is in the NFL’s best interest to do so to improve the credibility of internal proceedings, consistency of penalties, and to avoid similar gaffes of bad publicity.  As the commissioner’s authority has been overturned in a variety of contexts, it has undermined the commissioner’s authority to implement punishment.  A revised system that grants a truly mutual arbiter (or arbiters) authority would likely ensure that the NFL does not continue to have its authority questioned in open court.  Should the NFL adopt a system like the tripartite arbitration panel used in the MLB,[35] both the NFLPA and NFL could appoint an arbitrator while allowing for a third neutral arbiter to have the deciding vote.  This would significantly limit what has become the inevitable challenging of Goodell’s adjudicative decisions.

About the Author

Zachary Paiva is a first-year law student at Fordham University School of Law.  Prior to attending Fordham Law School, Zachary graduated from the University of Michigan with a degree in Sport Management.

 

[1] Jack Dickey, Why so Serious, Roger Goodell?, TIME (Dec. 10, 2014), http://time.com/3628892/roger-goodell/.

[2] Ken Belson, In N.F.L.’s Trying 2014, Roger Goodell Earned $34.1 Million, N.Y. Times (Feb. 16, 2016), http://www.nytimes.com/2016/02/17/sports/football/nfl-paid-commissioner-roger-goodell-34-1-million-in-2014.html?_r=0.

[3] Nat’l Football League Personal Conduct Policy, Nat’l Football League (2013), https://nfllabor.files.wordpress.com/2013/06/personal-conduct-policy.pdf.

[4] NFL Rules Enforcement, NFL.com, http://operations.nfl.com/football-ops/nfl-rules-enforcement/ (last visited Apr. 15, 2016).

[5] Jack Shafer, Roger Goodell, the NFL’s Judge and Jury, Becomes His Own Executioner, REUTERS (Sept. 11, 2014), http://blogs.reuters.com/jackshafer/2014/09/11/roger-goodell-usually-the-nfls-judge-and-jury-becomes-his-own-executioner/.

[6] See Const. and Bylaws of the Nat’l Football League, Nat’l Football League (Revised 2006), http://www.vanderbilt.edu/econ/faculty/Vrooman/NFL-bylaws.pdf.

[7]  See id.; see also Nat’l Football League Collective Bargaining Agreement 204 (2011), https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf.

[8] Mark Heisler, How NFL Players Gave Roger Goodell All that Power and Created a Monster, Forbes.com (Sept. 3, 2015, 9:00 AM), http://www.forbes.com/sites/markheisler/2015/09/03/how-nfl-players-gave-roger-goodell-all-that-power-and-created-a-monster/#33851c6a2c13.

[9] Id.

[10] Alternatively, the NFL and NFLPA could mutually agree to amend the commissioner’s authority prior to the CBA’s expiration date in 2020.  However, the commissioner stated at the NFL Annual Meeting on March 22, 2016, that “[w]e are not close to an agreement by any stretch of the imagination on any changes to that as it relates to third party or other individuals making those decisions.” Cameron McDonough, NFL, NFLPA Appear Nowhere Close to Deal Over Roger Goodell’s Discipline Power, NESN.com (March. 23, 2016, 11:17 PM), http://nesn.com/2016/03/nfl-nflpa-appear-nowhere-close-to-deal-over-roger-goodells-discipline-power/.

[11] Clinton Yates, Tom Brady’s Four-Game DeflateGate Suspension Upheld by Roger Goodell, WashingtonPost.com (July. 28, 2015), https://www.washingtonpost.com/news/early-lead/wp/2015/07/28/tom-bradys-four-game-deflategate-suspension-upheld-by-roger-goodell/.

[12] For an interesting piece on the legal implications of the ongoing ‘Deflategate’ saga see Cole Renicker, As the NFL Season Ends, Tom Brady and the NFL Resume ‘Deflategate’ Saga, Fordham Sports L. Forum Blog (April. 4, 2016), http://fordhamsportslawforum.com/lawsuit/as-the-nfl-season-ends-tom-brady-and-the-nfl-resume-deflategate-saga/.

[13] As per Article XI of MLB’s CBA, the commissioner’s authority to issue fines and suspensions is shared with the MLB Executive Vice President and Senior Vice President.  Appeals of decisions made by the three executives are reviewed by an arbitration panel composed of an impartial arbiter or a panel of three impartial arbiter.  Major League Baseball Collective Bargaining Agreement 38, 44 (2012), http://mlb.mlb.com/pa/pdf/cba_english.pdf.

[14] Atlanta Nat’l League Baseball Club, Inc. v. Kuhn, 432 F. Supp. 1213 (N.D. Ga. 1977).

[15] Charles O. Finley & Co. v. Kuhn, 569 F.2d 527 (7th Cir. 1978).

[16] See Major League Const. art. II (2005), http://www.ipmall.info/hosted_resources/SportsEntLaw_Institute/League%20Constitutions%20&%20Bylaws/MLConsititutionJune2005Update.pdf (granting the commissioner authority to investigate acts not in the “best interest of the national game of baseball”).

[17] See Atlanta Nat’l League Baseball Club, 432 F. Supp. at *1220; see also Charles O. Finley & Co., Inc., 569 F.2d at *539.   

[18] George J. Mitchell, Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of Steriods and other Performance Enhancing Substances by Players in Major League Baseball (a.k.a. the “Mitchell Report”), (Dec. 13, 2007), http://files.mlb.com/mitchrpt.pdf.

[19] See NFL Personal Conduct Policy, supra note 3; see also Nate Jackson, The N.F.L.’s Absurd Marijuana Policy, N.Y. Times (Sept. 8, 2014) http://www.nytimes.com/2014/09/09/opinion/the-nfls-absurd-marijuana-policy.html.

[20] See, e.g., Bethany P. Withers, Note, The Integrity of the Game:  Professional Athletes and Domestic Violence, 1 Harv. J. of Sports & Ent. L. 145 (2010) (discussing professional sports leagues off-the-field domestic violence issues and related suspensions); see also Nat’l Football League Collective Bargaining Agreement, supra note 7, at app. A. §15.

[21] 9 U.S.C. §§ 1 et seq (2012).

[22] United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593 (1960).

[23] 9 U.S.C. § 10(a)(2) (2012).

[24] 94 Am. Jur. 2d Trials 211 §136 (2004)

[25] M’Baye v. World Boxing Ass’n, 429 F. Supp. 2d 660 (S.D.N.Y. 2006).

[26] See Paul Tagliabue Vacates Penalties, ESPN.com (Dec. 12, 2012), http://espn.go.com/nfl/story/_/id/8736662/paul-tagliabue-vacates-new-orleans-players-bounty-penalties. “Bountygate” refers to the 2012 suspensions of a number of New Orleans Saints players and coaches following an NFL report of a bounty system used to incentivize players to injure opposing players for monetary rewards.

[27] 575 N.Y.S.2d 1013 (Sup. Ct. 1991).

[28] Id. at 1017.

[29] PATRICK K. THORTON, SPORTS LAW 687-89 (2010) (discussing In re Major League Baseball Players Ass’n v. Comm’r of Major League Baseball, Suspension of Steve Howe (1992) (Nicolau, Arb.)); see also Jason M. Pollack, Note, Take my Arbitrator, Please:  Commissioner “Best Interests” Disciplinary Authority in Professional Sports, 67 Fordham L. Rev. 1645, 1696 (1999)

[30] NFL Players Ass’n v. Nat’l Football League, 88 F. Supp. 3d 1084, 1091 (D. Minn. 2015).

[31] Ken Belson, Suh Wins Appeal and Will Be Able to Face Cowboys, N.Y. Times (Dec. 30, 2014),

[32] Summary of Decision, in re Ray Rice (Nov. 18, 2014) (Jones, Arb.), http://espn.go.com/pdf/2014/1128/141128_rice-summary.pdf (involving an original two-game suspension that was increased to an indefinite suspension before being overturned by arbiter Judge Jones).

[33] See Paul Tagliabue Vacates Penalties, supra note 25.  While Roger Goodell recused himself from the appeals panel, the evident partiality of former commissioner Paul Tagliabue was challenged and the case demonstrates the inconsistency of NFL suspensions and the frequency that they have been overturned.

[34] See Michael McCann, Overturning of Bounty Suspensions Backs Goodell into a Corner, Sports Illustrated (Sept. 7, 2012, 9:33 AM), http://www.si.com/more-sports/2012/09/07/saints-suspensions-overturned.

[35] The MLB tripartite arbitration panel allows for the MLB and MLBPA to both delegate an arbiter and the third arbiter to be neutral.  This panel has been utilized in a variety of appeals, notably the overturning of the MLB reserve clause (decision upheld by the Eighth Circuit in Kansas City Royals Baseball Corp. v. Major League Baseball Players Ass’n, 532 F.2d 615, 632 (8th Cir. 1976)).

As the NFL Season Ends, Tom Brady and the NFL Resume ‘Deflategate’ Saga

Deflategate-PatriotsBeing an immensely popular and public entity has created serious drama for, and within, the National Football League (NFL).  In what has come to be known as “Deflategate,”[1] the NFL and New England Patriots quarterback Tom Brady, one of its marquee players, have clashed in federal courts for over a year.  After Brady’s initial four-game suspension (for his alleged involvement with the under-inflation of game-used footballs) was upheld by the NFL’s Commissioner, Roger Goodell,[2] the Southern District of New York overturned his four-game suspension,[3] prompting the NFL to appeal the district court’s reversal.  The U.S. Court of Appeals for the Second Circuit held oral arguments on March 3, 2015,[4] with the rumor out of the hearing being that Brady looks to be in trouble, as his suspension may be reinstated.[5]

One thing about the Second Circuit’s review is not in question:  this is not a review to determine if Brady participated in the deflation of footballs.[6]  The Second Circuit’s review is focused on determining if the lower court overstepped its boundary in reversing the NFL’s arbitration decision, pursuant to the NFL’s Collective Bargaining Agreement (CBA).[7]  This is primarily a procedural determination, rather than a substantive one.

This post discusses the district court’s reversal of the NFL’s hearing officer,[8] the Second Circuit’s review of that decision, and the labor law principles that courts generally apply in reviewing a disciplinary decision stemming from a collective bargaining agreement between an employer and a union.  This post concludes with a prediction as to how the Second Circuit will rule on the NFL’s appeal.

Why Is Brady Appealing?

After Tom Brady’s initial four-game suspension was upheld by Commissioner Goodell on appeal, Brady decided to file a lawsuit pursuant to Article III of the NFL’s CBA.  Under Article III, a player may bring a lawsuit against the NFL to challenge the impartiality of the arbitrator in hearing any player’s appeal.[9]

Here, Brady was alleging that the Commissioner was not impartial, as required under Articles XV and XVI of the CBA.  Additionally, Brady argued that he was not provided notice of a possible four-game suspension for such a violation.  Brady also argued that he did not have access to the unfiltered report itself during the appeal hearing, or access to key witnesses involved in the preparation of the report.[10]

Eventually, district court Judge Richard Berman agreed with Brady, and overturned his suspension on September 3, 2015.[11]  Judge Berman decided that the NFL did not meet the procedural requirements in Brady’s appeal, holding that they failed to provide him the requisite notice and access to key information during the appeal process.[12]  The NFL subsequently filed its appeal to the Second Circuit.

What Will the Second Circuit Be Analyzing On Appeal?

At issue in the Deflategate dispute is whether or not Commissioner Goodell’s affirming of Brady’s suspension was in compliance with the NFL’s CBA.  As stated above, Judge Berman ruled that it was not, after Brady argued that he did not have notice of the punishment, and access to the report and key witnesses.  Under the Labor Management Relations Act though, the power to interpret a CBA generally belongs to the agreed upon body as set forth in the CBA at issue.[13]  In the NFL’s CBA, the Commissioner may appoint himself as hearing officer, if he chooses, and is entitled to interpret the application of the CBA.[14]

In hearing a case in which an arbitrator would have already ruled on the issue (which is the case in the NFL because a hearing officer oversees the appeal of player discipline), courts will rarely overturn the decision of an arbitrator or hearing officer.  The arbitration procedural step is mutually agreed upon, and in general labor law, there is a “private association” principle that many courts follow in declining to interrupt a private agreement between parties.[15]  The primary thinking behind this principle is that the agreements between private parties should mean something, and should not be overturned or interfered with.[16]

This “private association” principle presents a dilemma for judges in deciding cases where an arbitrator has already made a ruling.  Although a judge may have a strong opinion in certain cases, they typically are precluded from being able to overturn an arbitrator’s decision.  This is why Judge Berman’s overturning of Brady’s suspension was fairly surprising from a legal perspective.[17]  Many laypeople in opposition of Brady’s suspension were against the suspension because of the lack of concrete evidence against Brady.  Judge Berman did not overturn the suspension due to the evidence presented though; he overturned it due to the procedural steps that were not provided to Brady—notice and access to key information.[18]

How the Second Circuit decides the NFL’s appeal will not be based on whether Brady was involved in the football under-inflation, the evidence against him, or the report itself.  Its decision will be based on whether Judge Berman overstepped his bounds in overturning the hearing officer as set forth in the CBA; and in rendering its decision, the Second Circuit will be applying a de novo standard of review.[19]  Thus, while many people will see this decision as vindicating one of the two parties’ arguments, it is truly a procedural issue to be determined by the Second Circuit, and does not ultimately reveal anything about Brady’s guilt or innocence in Deflategate.

How Will the Second Circuit Decide?

The oral arguments that took place on March 3, 2016, started by focusing on Brady’s lack of cooperation in the initial investigation, and his destroying of his cell phone.[20]  When Brady’s attorney, Jeffrey Kessler, presented Brady’s oral argument, Judge Denny Chin had remarked that “the evidence of the ball tampering is compelling, if not overwhelming[,]”[21] and followed that question up by asking “why the three-judge panel should ‘second-guess’ the arbitration, meaning Goodell.”[22]

Due to the weight that courts have typically given to arbitrators, and the deference they have usually shown them, it was surprising to see Judge Berman overturning the NFL.  As such, it is likely—based on historical precedent and reports of the types of questions the Second Circuit panel asked of Brady—that the district court’s vacation of Brady’s suspension will be overturned.

Even if the Second Circuit rules against Brady, the case can still be remanded back down to the district court, instead of an outright reversal.  Kessler, arguing on behalf of Brady, stated that it should be remanded, because Judge Berman intentionally declined to rule on three alleged missteps by the NFL:  whether Goodell was ‘evidently partial’ by delegating his authority to NFL executive vice president Troy Vincent; whether Goodell unlawfully made factual conclusions that were outside the scope of the Wells Report and Brady’s appeal; and whether Goodell expressing support for the Wells Report after its publication prejudiced Brady’s chances for a fair appeal and thus prevented Goodell from lawfully serving as the arbitrator for the appeal.[23]

An order should be coming in the next few months, which will then shape how Deflategate will progress from here.

 

 

Cole Renicker is a second-year law student at Fordham University School of Law and staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal.  Prior to attending Fordham Law School, Cole graduated from Penn State University with a degree in Business Management.

[1] Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 2015 WL 5148739, at *1 (S.D.N.Y. Sept. 3, 2015).

[2] Barry Wilner, Roger Goodell Upholds Tom Brady’s 4-Game Suspension, The Big Story (A P) (July 29, 2015, 12:33 AM), http://bigstory.ap.org/article/3a1406e0d40a4cb19a8d836c465843f8/bradys-suspension-upheld-nfl-commissioner-roger-goodell.

[3] See Nat’l Football League Mgmt. Council, 2015 WL 5148739, at *20.

[4] Michael McCann, Tom Brady Could Be in Trouble After Deflategate Appeal Hearing, Sports Illustrated, http://www.si.com/nfl/2016/03/03/deflategate-appeal-nfl-tom-brady-roger-goodell (last updated March 4, 2016).

[5] See id.

[6] See id.

[7] See E. Associated Coal Corp. v. United Mine Workers, Dist. 17, 531 U.S. 57, 67 (2000) (holding that there should be deference to a collectively bargained arbitrator’s decision in construing or applying a contract); Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504 (2001) (ruling that the Court of Appeals’ decision to overturn the arbitrator and decide the case on the merits was at odds with governing law); see also Nat’l Football League Collective Bargaining Agreement, art. XLVI §2 [hereinafter 2011 NFL CBA], https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf (providing for an agreed upon hearing officer, whose decision is final and binding over the parties, to hear players’ appeals regarding a disciplinary decision).

[8] Under art. XLVI § 2 of the NFL’s CBA, the NFL selects a hearing officer to rule on player disciplinary appeals.  The Players’ Union may suggest, or provide input into the selection of, a hearing officer, but the choice is ultimately made by the NFL.  The NFL Commissioner retains the power to appoint himself as the hearing officer for any particular appeal. See 2011 NFL CBA, supra note 7, art. XLVI §2.

[9] See 2011 NFL CBA, supra note 7, art. III.

[10] Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 2015 WL 5148739, at *11–20 (S.D.N.Y. Sept. 3, 2015).  Judge Berman determined that notice of potential punishments for certain violations needed to be conveyed to the players, and it was not provided to Brady. See id. at *15–16 (“A player’s right to notice is at the heart of the CBA and, for that matter, of our criminal and civil justice systems.”).  Additionally, Judge Berman determined that the Commissioner’s failure to permit Brady to cross-examine material witnesses, and not permit Brady access to the primary investigative files ran contrary to fundamental arbitral procedures. See id. at *16–20.

[11] See Nat’l Football League Mgmt. Council, 2015 WL 5148739, at *1.

[12] Id. at *20.

[13] See Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 88 F. Supp. 3d 1084, 1089–90 (D. Minn. Feb. 26, 2015).

[14] See 2011 NFL CBA, supra note 7, art. XLVI §2.

[15] “A most dramatic illustration of this principal occurred in Carr v. St. John’s University, 17 A.D.2d 632, 231 N.Y.S.2d 410 (1962), where the court refused to interfere with a university’s decision to expel Catholic students who had participated in a civil marriage ceremony.” Jan Stiglitz, Player Discipline in Team Sports, 5 Marq. Sports L.J. 167, 174 n.38 (1995). See generally Jeffrey A. Durney, Fair or Foul?  The Commissioner and Major League Baseball’s Disciplinary Process, 41 Emory L.J. 581 (1992); Christopher J. McKinny, Professional Sports Leagues and the First Amendment:  A Closed Marketplace, 13 Marq. Sports L. Rev. 223, 236–37 (2003).

[16] See Stiglitz, supra note 14, at 174 n.38.

[17] See Lester Munson, NFL Appeal of Brady Decision Could Lead to Precedent-Setting Court Ruling, ESPN (Sept. 3, 2015), http://espn.go.com/espn/otl/story/_/id/13572474/nfl-appeal-tom-brady-decision-lead-precedent-setting-court-ruling-lester-munson-writes. But see Nat’l Football League Mgmt. Council, 88 F. Supp. 3d at 1090–92.  The difference between Deflategate, and past situations where NFL arbitrators have been affirmed or reversed, is that the Commissioner was the one to hear Brady’s appeal, after having significant involvement in his initial punishment. See generally Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 2015 WL 5148739, at *1 (S.D.N.Y. Sept. 3, 2015).

[18] Nat’l Football League Mgmt. Council, 2015 WL 5148739, at *11–20.

[19] Encyclopaedia Universalis S.A. v. Encyclopaedia Britannica, Inc., 403 F.3d 85, 89–90 (2d Cir. 2005) (“Where a district court denies confirmation of an arbitral award, we review its findings of fact for clear error, and its conclusions of law de novo.”).  The de novo standard of review is the most lenient standard, and makes it more likely that a lower court’s decision will be overturned.

[20] McCann, supra note 4.

[21] Id.

[22] Id.

[23] Id.