Thursday morning, September 3rd. The news hit me like a strong shot. The arbitration award affirmed by Commissioner Goodell had been vacated that morning in a Federal District Court. And I (in one of my rare moments of brilliance) had drafted him in the 10th round the night before for almost nothing. Of course my excitement could barely be contained. I quickly renamed my team to Tom is Not a Crook (with a photo of Nixon as my image), and I tried to pawn off Romo for a decent receiver.

Aside from the significance of the court’s ruling for the future of my fantasy team and the news that I made a divinely inspired pick in my fantasy draft (which is really the message I am trying to get across here), the court’s opinion also sends a clear message to Commissioner Goodell: while his powers are expansive under the collective bargaining agreement (CBA), they are not unlimited, and he cannot just make up the law as he goes.

I spent much of this summer reviewing district court decisions concerning arbitration awards. Arbitration awards are given great deference by the courts and are rarely vacated. An arbitration award may be challenged under section 10 of the Federal Arbitration Act for 1) corruption, fraud, undue means, 2) evident partiality or corruption, 3) hearing misconduct, and/or 4) exceeding the arbitrator’s powers or imperfectly executing the award. The bar is high in each category. An employment arbitration award may also be vacated under section 301 of the Labor Management Relations Act for deciding a dispute not committed to arbitration or failing to draw its essence from the collective bargaining agreement. I cannot overemphasize how rarely courts vacate arbitration awards.

In AT & T Technologies, Inc. v. Communications Workers of Am., the Supreme Court established that “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Furthermore, the reviewing court has the power to determine de novo the scope of the arbitrator’s jurisdiction pursuant to the CBA. A court is not, however, supposed to review the merits of the case. See also here (summarizing AT&T and applying common law principles to a CBA)

In his 40 page opinion, Judge Richard M. Berman criticized almost every aspect of the arbitration award and the proceedings leading up to it. He focused on the lack of actual or constructive notice to Brady that a four-game suspension was even remotely possible as a punishment for “general awareness” of equipment tampering, but he also noted that Brady was refused his request to examine a witness and compel the production of evidence that was relevant and probative to the case. Finally there was the fact that the independence of the investigation is dubious, Goodell’s role in the appeal of the punishment he approved in the first place, and various other misconducts and prejudices that arose during the case. Most of the grounds to vacate under the FAA and the LMRA are at least arguable under the facts stated in the opinion and the legal analysis offered by Judge Berman. Plus a number of issues, like the relationship between equipment tampering and steroid abuse, were conceivably beyond the jurisdiction of the arbitrator.

Goodell relied primarily on a provision of the CBA granting him broad discretion to discipline players whose actions jeopardize the integrity of the game. Such a broad provision however should not be relied upon to support a punishment for equipment tampering based on a comparison to steroid abuse, particularly when the players’ contract stipulates a fine for equipment tampering. It is a core principle of contractual interpretation that an ambiguous provision should be interpreted in favor of the non-drafting party. Furthermore, an unambiguous provision should control an ambiguous provision.

To be honest, I personally think Tom Brady was at least aware that the game balls had been tampered with. I just cannot imagine someone on the staff tampering with a game ball unless they knew Brady was okay with it. And to be fair to Commissioner Goodell, Brady did not make his job easier during the investigation. However, Commissioner Goodell must realize that his power is limited to the terms of the collective bargaining agreement. Everyone in the NFL gives him incredible deference because it helps keep the peace, but at the end of the day, the scope of his jurisdiction is subject to interpretation by a court of law. Goodell must learn to think like a lawyer and focus on procedure and process rather than just the merits of a case when he is acting as an arbitrator.

To read more see here and here.

Edmund Semmes

One Response to Big, Bad Commissioner Goodell

  1. Jackson Sattell says:

    You would think Goodell and the NFL would have competent attorneys who could advise them on matters such as this. It’s unclear how Goodell was so poorly equipped to be an arbitrator, but thankfully the system was able to fix his mistakes.

    While you are right and Brady most certainly knew the balls were tampered (and realistically had a hand in the tampering), he, like everyone else protected by the Constitution, deserves his day in court.

    But most of all, I am happy for you and your fantasy football team. Grabbing Brady in the 10th Round was a steal and I think says more about the ineptitudes of your fellow competitors. Best of luck in the upcoming season, but I don’t think you’ll need it as you’re already in great position.

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