WHAT CAN WE LEARN FROM JUDGE BERMAN’S OPINION IN DEFLATEGATE ABOUT ATTACKS ON ARBITRATOR’S RULINGS?

DEFLATEGATE RULING – USDC JUDGE RULES ON NATIONAL FOOTBALL LEAGUE MANAGEMENT COUNCIL V. NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION

United States District Court Judge Richard M. Berman ruled today that the arbitrator’s ruling by Commissioner Goodell in National Football League Management Council v. National Football League Players Association could not be confirmed, and instead must be vacated. Sports media legal analysts generally forecast a victory for Commissioner Goodell and the National Football League Management Council on the basis of past history and case law on the deference afforded to arbitral decisions. What was it that persuaded Judge Berman that this ruling could not stand? Without questioning the factual findings in the arbitration decision, Judge Berman determined that the Award (Commissioner’s Goodell’s July 28, 2015 Arbitration Award) should be vacated because of three key legal deficiencies; (a) inadequate notice to Tom Brady that he could receive a four game suspension; (b) denial of the opportunity to examine one of the two lead investigators – NFL Executive Vice President and General Counsel Jeff Pash, and (c) denial of equal access to investigative files including witness interview notes. The NFL could not explain, even at oral argument, what portion of the suspension was attributable to ball-tampering as opposed to Brady’s failure to cooperate with the investigation. The Award equated Brady’s conduct in allegedly seeking an improper competitive advantage with a violation of the collectively bargained performance enhancing drug policy – as if Brady had tested positive for using steroids. Judge Berman found that there was nothing in the “Policy on Anabolic Steroids and Related Substances” that could reasonably put Brady on notice of the discipline he would face for an equipment violation. “No player alleged or found to have general awareness of the inappropriate ball deflation activities of others or who allegedly schemed with others to let air of out of footballs in a championship game and also had not cooperated in an ensuing investigation, reasonably could be on notice that their discipline would (or should) be the same as applied to a player who violated the NFL Policy on Anabolic Steroids and Related Substances.” Paul Tagliabue’s arbitration award in the Bounty-Gate case that no player had been suspended for obstructing a league investigation came back to bite the NFL once again. The second point is probably the one from which we can draw the most practical lesson for other cases – if an attorney becomes a co-lead investigator for the case they cannot be shielded from examination on the basis that their testimony would be “cumulative”. When Jeff Pash reviewed, edited, and provided written comments on the report of an “independent investigation” and was publicly declared by the NFL to be the co-lead investigator he became a witness subject to examination. NFL precedent affords players an opportunity to confront their investigators. Denying Brady the opportunity to question Pash was determined by Judge Berman to be “fundamentally unfair”. The substantial prejudice to Brady from being denied access to this evidence would warrant, by itself, vacating the award. The third point also provides practical guidance; Brady was denied access to the investigative files of the “independent investigation”. The deprivation of access to materials providing the basis for the report relied upon to discipline Brady was fundamentally unfair and prejudicial. Like the denial of access to Pash, this alone would have warranted vacating the award. This parallels a situation where an investigator’s notes relied upon in preparing his report are withheld from discovery, a situation no other civil case in federal or state court would permit absent a “work-product” privilege objection, which could be overcome by a demonstration of substantial need. As both the “independent investigator” and retained counsel who handled Brady’s cross-examination, the Paul, Weiss attorneys had access to materials used to question Brady that he and his counsel did not have. Paul Tagliabue’s Arbitrator’s Ruling in Bounty-Gate compelling production of NFL investigative reports and redacted accounts of witness statements was a telling blow to the NFL Management Council’s position here. The lessons to be drawn are; if you are going to discipline someone make sure (a) they have documented notice of the discipline they can face for the violations being brought against them and impose discipline consistent with that notice, (b) if in-house counsel becomes an investigator he becomes a witness subject to questioning, and (c) investigative materials available to one side that provide the basis for an investigation report that provides the basis for the discipline have to be produced upon request in order to allow a full and fair opportunity to contest the report and the basis for discipline. The NFL Management Council has already appealed so the last words on this decision have not yet been spoken or written. -written by JCG

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