Look for Judge Richard Berman to craft an opinion in the Tom Brady case that embarrasses Roger Goodell in a way that will withstand the certain appeal that will follow.
A decision to vacate by Judge Berman must be based purely on procedural grounds – i.e., that the NFL went beyond the scope of the Collective Bargaining Agreement in order to punish Brady. What Judge Berman will be careful about in fashioning an opinion that orders a vacatur is making clear that the facts of the NFL’s investigation and flawed conclusions drawn by Goodell did not influence his (Berman’s) decision. In this regard, Judge Berman can make effective use of the footnote.
Footnotes are literary tools commonly employed by courts in legal opinions as a way of articulating an aside at a certain point in the body of the opinion – an aside that isn’t necessarily germane to the disposition of the case but might be of interest to the author or the reader. Footnotes are used to address a side issue in such a way that it doesn’t detract from the flow of the main opinion. The author will come to the point in the text where it is most relevant and place a footnote that directs the reader to a bar-separated section at the bottom of that page where the side issue is discussed in detail. If the reader wants to stay in the flow of the opinion, he/she can do so and not bother reading the footnote. But footnotes are sometimes the most interesting part of the decision
Judge Berman could use a footnote to criticize the conclusions drawn by Goodell, or even ridicule them, while at the same time stressing that Goodell’s factual conclusions had nothing to with his decision to vacate on purely procedural grounds. Although Judge Berman gave a measure of praise to the parties’ efforts to arrive at a settlement on Monday, that expression may not have been genuine. If he privately felt that Roger Goodell was, in fact, heavy-handed and intransigent during the settlement discussions and he was agitated enough by it, he could address the Commissioner’s factual conclusions and the investigation leading up to those conclusions in a way that would be downright embarrassing to the Commissioner but also in a way that would firewall it from the main opinion – in a footnote embedded deep in the opinion.
If the arbitration award is vacated, pay attention to the footnotes.
A Second Avenue for Embarrassment: Pash
A second way for Berman to embarrass the NFL is through hypothetical discussions of what Tom Brady could have proven if Goodell had not made procedural errors during the arbitration. For example, Judge Berman could explain that if Brady had a chance to cross examine Jeff Pash during the arbitration hearing, perhaps Brady could have convinced Roger Goodell that the Wells Report was so one-sided and unreliable that no reasonable arbitrator would consider the report credible. In effect, Berman would be calling the Wells Report one-sided and unreliable – i.e. embarrassing Goodell – without really saying it. After all, Berman would only be discussing a hypothetical situation.
The argument goes: by depriving Brady of the opportunity to cross-examine Pash, Goodell really deprived himself of a valuable opportunity to understand the flaws in the Wells Report that could have changed his mind. (Do you hear that Roger? By hurting Brady, you’re only hurting yourself. It’s sad, really.)
We will never know whether Goodell would have ruled differently after hearing Pash’s testimony, Berman could explain, but we can surely say that Brady was prejudiced because he was not given the opportunity to change Goodell’s mind. (All Brady was looking for was a chance to change your mind, Roger, just a chance…)
Clearly, the notion that Pash’s testimony would have actually changed Goodell’s mind is absurd – which is exactly why Berman might choose to highlight it, along with all the other ways that Goodell “might have ruled” if the commissioner had just listened to common sense and avoided the procedural irregularities that plagued the process. After all, Berman could point out, Brady could have addressed a litany of potential problems with the Wells Report – some of which Berman might also choose to highlight – if Brady has just gotten the chance to make his complete case to that fair and unbiased arbitrator known as Roger Stokoe Goodell, who would have surely done a better job if he’d just had all the facts.
About the Author: James M. Lynch is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.