As predicted here (How Judge Berman Will Embarrass the NFL in Deflategate Opinion) on September 1, 2015, Judge Richard Berman vacated Tom Brady’s suspension, in a blistering 40-page opinion, blasting the NFL and Roger Goodell. Berman’s opinion powerfully excoriates the league on the grounds set forth in this succinct summarization found on pages 20-21, which Berman subsequently expands into detail critiques of the league at every stage of the investigation:
The Court is fully aware of the deference afforded to arbitral decisions, but, nevertheless, concludes that the Award should be vacated. The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL Executive Vice President and General Counsel Jeff Pash; and (C) denial of equal access to investigative files, including witness interview notes”.
Berman elaborated in a detailed analysis the highlights of which are as follows:
A. Inadequate Notice to Brady
Regarding the lack of notice of punishment to Brady, Berman writes:
The Court finds that Brady had no notice that he could receive a four-game suspension for general awareness of ball deflation by another or participation in any scheme to deflate footballs, and non-cooperation with the ensuing investigation. Brady also had no notice that his discipline would be the equivalent of the discipline imposed upon a player who used performance enhancing drugs …. The Court is unable to perceive ‘notice’ of discipline, or any comparability between a violation of the Steroid Policy and a “general awareness” of the inappropriate activities of others, or even involvement in a scheme by others to deflate game balls on January 18, 2015, and non-cooperation in a football deflation investigation. ….
The Award offers no scientific, empirical, or historical evidence of any comparability between Brady’s alleged offense and steroid use … The Court finds that no player alleged or found to have had a general awareness of the inappropriate ball deflation activities of others or who allegedly schemed with others to let air 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. Brady had no such notice. ….
It is the “law of the shop” to provide professional football players with (advance) notice of prohibited conduct and of potential discipline. … Because there was no notice of a four-game suspension in the circumstances presented here, Commissioner Goodell may be said to have “dispense[/fusion_builder_column][d] his own brand of industrial justice.” ….
With respect to “general awareness” of others’ misconduct-which is the principal finding in both the Wells Report and the Vincent Letter – Brady had no notice that such conduct was prohibited, or any reasonable certainty of potential discipline stemming from such conduct.
(Berman’s reference to Goodell dispensing “his own brand of industrial justice” is a gut punch, in judicial terms.)
B. Brady Improperly Denied Examination of Jeff Pash
With respect to Brady’s inability to cross-examine Jeff Pash, Berman writes:
The Court finds that Commissioner Goodell’s denial of Brady’s motion to compel the testimony of Mr. Pash was fundamentally unfair and in violation of 9 U.S.C. § O(a)(3). Given Mr. Pash’s very senior position in the NFL, his role as Executive Vice President and General Counsel, and his designation as co-lead investigator with Ted Wells, it is logical that he would have valuable insight into the course and outcome of the Investigation and into the drafting and content of the Wells Report. … Denied the opportunity to examine Pash at the arbitration hearing, Brady was prejudiced. He was foreclosed from exploring, among other things, whether the Pash/Wells Investigation was truly “independent,” and how and why the NFL’ s General Counsel came to edit a supposedly independent investigation report. … As co-lead investigator and senior executive with the NFL, Pash was in the best position to testify about the NFL’s degree of involvement in, and potential shaping of, a heralded “independent” Investigation.
(Berman’s use of quotes in commenting on the “independent” investigation is duly noted.)
C. Brady Improperly Denied Access to Investigative Files
Regarding Brady’s lack of access to investigation files, Berman writes:
The Court finds that Commissioner Goodell’s denial of the Players Association’s motion to produce the Paul, Weiss investigative files, including notes of witness interviews, for Brady’s use at the arbitration hearing was fundamentally unfair and in violation of9 U.S.C. § 10(a)(3) and that Brady was prejudiced as a result. The interview notes were, at the very least, the basis for the Wells Report, and Brady was prejudiced by his lack of access to them. Brady was denied the opportunity to examine and challenge materials that may have led to his suspension and which likely facilitated Paul, Weiss attorneys’ cross-examination of him. Because the investigative files included the unedited accounts of the witness interviews, the Wells testimony at the arbitration hearing failed to put Brady “in the same position as the document[ s] would [have].” (Citations omitted.) ….
Compounding Brady’s prejudice is the fact that, as noted, Paul, Weiss acted as both alleged “independent” counsel during the Investigation and also (perhaps inconsistently) as retained counsel to the NFL during the arbitration. Paul, Weiss uniquely was able to retain access to investigative files and interview notes which it had developed; was able to use them in direct and cross-examinations of Brady and other arbitration witnesses; share them with NFL officials during the arbitral proceedings; and, at the same time, withhold them from Brady.
Watch for our next post on why this decision will prove to be bullet-proof on further appeal that the NFL will inevitably file.
Download or read Berman’s full opinion here:
About the Author: James M. Lynch is a Massachusetts lawyer for Lynch & Owens, located in Hingham, Massachusetts, whose practice areas include DUI defense, divorce and personal injury.