Judge Richard Berman’s 40-page decision on NFL Management Counsel v. NFL Players Association gave the commissioner’s office the worst of possible results. Commissioner Roger Goodell will certainly proceed with his announced appeal of the judicial determination that has dangerously undermined his critical role of being able to preserve the integrity of the game. 

When a panel of three appellate judges in New York’s Second Circuit address this case, they will likely come to a decision less favorable to the Players Association even if aspects of the decision are upheld. However, appeals can take a solid year, with the time allowed for the filing of briefs, oral argument, and writing an even longer decision. As fate may have it, such a decision may come out just around the time for opening day 2016.  

The section of Judge Berman’s decision that has been most widely reported, which concluded that there was inadequate notice to players that deflating footballs could result in a four-game suspension, is the portion of the opinion most likely to be overturned. 

Importantly, Judge Berman imposed himself as commissioner, and in his own wisdom, found the scheme to deflate balls not terribly significant. As is well known, Roger Goodell imposed the four-game suspension after finding Brady was “generally aware” of the scheme to deflate balls along with Brady’s non-cooperation with the investigation. In overturning this penalty, Judge Berman faulted the commissioner for numerous determinations Goodell made after appointing himself final arbitrator of Deflategate. This included a critique of Goodell’s: (1) basing the length of the suspension on the type of penalty a player can receive for a first-time performance enhancing drug offense; (2) failure to specify how the punishment was divided between ball tampering and non-cooperation with the investigation; and (3) finding a quarterback being generally aware of a ball deflation scheme to benefit the QB’s grip preference as sufficient to impose a suspension.

All of these determinations should be reserved the man paid an ungodly sum by all NFL teams to preserve the fairness of the game -- not the jurist fortunate to have the most notable American legal dispute wheeled to him. 

It was Goodell’s finding that Brady undermined the integrity of the game under paragraph 15 of the standard NFL player contract. This provision notes that players can be fined, suspended, or fired for conduct reasonably thought by the commissioner to undermine public confidence in the league. The commissioner is given authority under the Collective Bargaining Agreement to impose discipline for violations considered detrimental to the running of the league. 

Historically, the NFL commissionership was established in 1941, and was modeled on baseball’s Kenesaw Mountain Landis, who was installed to restore integrity to our national pastime after the 1919 Black Sox scandal. This role of maintaining integrity cannot be underestimated and involves the power to discipline prized athletes over the wishes of team ownership. In hiring such a figure, team owners gave away significant power the commissioner, who is independent of each team. Unlike a judge, the designated commissioner is entrenched in the business and customs of the game.

Before the commissioner’s office gave up its tax-exempt status in early 2015, the public learned that Mr. Goodell received the salary of $35 million in 2013. In both Judge Berman’s decision and the Wells report, it appears that Goodell was doing what he is paid his king’s ransom to do -- spare no expense to get to the bottom of what happened on January 18, 2015. Unfortunately, Judge Berman was too eager to insert himself as the overseer of Tom Brady’s penalty.

Judge Berman initially stated that the investigation found that after the interception in the second quarter by D’Qwell Jackson, the ball was given to the Colts equipment staff, who used a pressure gauge and determined that it was deflated. Officials were alerted and eleven of Patriots game balls were collected and each measured, at halftime, bellow the standard minimum, 12.5 pounds per square inch (p.s.i). The balls were reinflated to 13 p.s.i., which is midway between the allowable range of 12.5 and 13.5 set forth in the Game Operation Manual for the 2014 season. Judge Berman did not dispute any of the factual findings of the Wells reports, as that is something a judge ordinarily cannot do in assessing arbitration awards.

Judge Berman acknowledged that camera footage showed Jim McNally, the Patriots locker room attendant, entering and remaining inside a restroom with bags of game balls for approximately 1 minute and 40 seconds, on his way to the playing field prior to the start of the game. Judge Berman further noted that the engineering firm Exponent, which was hired by the NFL to analyze the science surrounding inflation and deflation, found that the reduction in pressure of the footballs could not be explained by natural conditions.  

Even the few examples of fact finding that Judge Berman saw fit to cite are enough to permit a league commissioner to make the rational determination that the integrity of the conference championship game was undermined through a conspiracy to deflate balls to benefit the player who most often handles them. Yet the decision either neglected or glossed over an overabundance of factual information in the Wells investigation that was overwhelmingly pejorative to Brady. Critical among such findings were the text messages between McNally and John Jastremski, a team equipment assistant, that glaringly implicate Brady’s involvement. 

In those messages, McNally, as early as May 9, 2014, which is before the season, refers to himself as “The Deflator.” A court should have found that such evidence provides the Commissioner the ability to make the inference that the tampering was going on before and through the course of the season.  

Further, on October 17, 2014, the day after playing the Jets, McNally texted Jastremski: “Tom sucks…im going make that next ball a f*ckin balloon,” permitting the commissioner to conclude that Brady prefers balls on the opposite side of the spectrum, especially given Brady later conceded his preference for keeping the balls at the lowest possible legal limit. On October 23, 2014, Jastermski continued the theme by noting: “Can’t wait to give you your needle this week :)” to which McNally replies, “F*ck tom…make sure the pump is attached to the needle…..f*cking watermelons coming,” and “the only thing deflating sun..is his passing rating.” Other texts from October 24, 2014 has McNally seemingly asking for shoes and cash as payment for his services and threatening to otherwise inflate the football to the size of a rugby ball. Further, the Wells investigation did show that McNally, on January 10, 2015, received a signed game-worn jersey and two signed footballs from none other than Brady. Again, such evidence gathered by Wells should permit the person hired to protect public confidence in the game to impose discipline on the person who benefited from the malfeasance. 

It is significant that McNally was already interviewed by the NFL before a number of the referenced texts were discovered, and the Patriots then shielded McNally from multiple attempts for a further interview. Goodell acknowledged such significant findings in his own 20-page arbitration award, while Judge Berman basically ignored them to support his own view of the matter. Judge Berman did not grasp the concept that a sports commissioner would find it natural to penalize a quarterback when the whole purpose of implementing a plan to deflate balls is to make them easier to grip for throwing.  

Additionally, Goodell highlighted, but Judge Berman ignored, what Goodell found to be an unusual pattern of communication between Brady and Jastremski in the days following the initial inquiry into the issue of doctored balls. This included speaking by phone six times in three days following the Colts game, after the two had not communicated for six months. Jastremski even warned Brady, by text, that the team’s equipment manager would be “picking your brain about it… He’s not accusing me, or anyone… trying to get to bottom of it. He knows it’s unrealistic you did it yourself…”

As it stands, Judge Berman’s decision completely undermines the theory that both teams in an NFL game should start the game on an equal playing field. It unfortunately encourages bending the rules to gain a competitive advantage if the athletes logically involved can delegate cheating to expendable team staff. This is the critical reason the NFL is obliged to fight on and will likely win aspects of an appeal. 

Roger Goodell, with years of experience working in the league, found the violation detrimental to the running of the league. Judge Berman, with no NFL experience, concluded that such conduct was more akin to equipment violation. In Judge Berman’s written opinion, actions detrimental to the league are more akin to the domestic violence cases of Adrian Peterson and Ray Rice. Simply, this is not the type of decision Judge Berman should be overruling Goodell on.

Judge Berman also found it significant that Brady could not be punished because there was no direct evidence linking him to the deflated balls. This was especially kind to Brady since Brady conveniently destroyed his six-month-old phone in early March on the very same day Ted Wells and his staff interviewed Brady. A commissioner should be able to determine the significance of such destruction of evidence that could lead to the truth of the matter. Judge Berman conveniently ignored the concept of spoliaiton, which covers the intentional destruction of evidence. Information that a party should know is would be used in a tribunal, should be preserved or there are consequences. Here, Judge Berman dismissed any such argument as he found there was no legal obligation to keep the phone in connection with an arbitration proceeding. 

Interestingly, Judge Berman could have decided this case in favor of Brady on grounds completely within normal judicial province -- on procedural grounds. If this occurred, the NFL likely would not have regarded the matter worth appealing. Judge Berman did find that Goodell unfairly denied Brady’s attorneys the opportunity to examine Jeffrey Pash, the NFL executive vice-president and general counsel, at the arbitration hearing. Essentially, arbitration proceedings, to be valid, must be “fundamentally fair.” This notion requires the parties be permitted to cross-examine significant adverse witnesses. Part of the custom of arbitration in the NFL is that lawyers for players can confront the primary investigators who found a player worthy of discipline. Here, Mr. Pash served as one of the lead investigators with Ted Wells. Further, Pash was involved with reviewing drafts of the Wells report and provided the law firm for the NFL (the Paul Weiss firm) written comments and edits prior to the report’s release. Judge Berman correctly concluded that it is logical that Pash would have valuable insight into the course and outcome of the investigation. Therefore, an ability to question Pash at the hearing should have been permitted to explore if the Wells Investigation was independent. Judge Berman questioned how the NFL general counsel would come to edit a supposedly independent report. 

Secondly, Judge Berman found that Goodell improperly denied Brady equal access to investigation files. Such discovery decisions of an arbitrator are discretionary and are usually paid deference to by a court. Nevertheless, this is still an area where courts often focus on when in the rare occasion they find it necessary to overturn an arbitration award. Brady was particularly seeking notes of sixty-plus interviews that formed the basis of the report. Since these notes were used by the NFL’s counsel to cross-examine Brady at the hearing, it does seem fair that Brady’s legal team should have equal access to them so they could fairly prepare and challenge the basis of the four-game suspension.

There were multiple ways of deciding against the NFL without usurping the basic role of the NFL commissioner, which is to impose sanctions when he determines that a player’s actions have undermined the integrity of the league. The preservation of this core function is what the Second Circuit Court of Appeals will likely correct next year.