I’ve been receiving a lot of immediate questions about the Deflategate Second Circuit argument in Tom Brady NFL discipline matter. Because I can’t discuss them all on Twitter and would like to collect them in one place, I will do a quick write up. As I was not at the argument, I hate to say anything too definitively based on just tweets about the questions and not even seeing a transcript.
[Update: I’ve read more detailed descriptions of the argument from lawyers who were there (see this good court summary by Michael McCann at SI) , and I pretty much have the same first impression]
[Update 2: I’ve finally read the transcript. It isn’t as helpful as being there, but it gives you a better sense of things reading it directly and not through anyone’s filters. My additional view? I think the entire transcript doesn’t look as negative to Brady as the initial reports sounded. The judges were asking hard questions for both parties to get a sense of what the limits on the NFL were and what the NFLPA believed should be the appropriate process. The fact assumptions were a little weird but it looked like the NFLPA explained them some.]
With that in mind, and given the questions I’ve been getting, here are my immediate, snapshot thoughts:
It Doesn’t Look Good For Brady. The types of questions that the NFLPA received suggest that they didn’t get the NFLPA’s argument at all, and the underlying legal and factual arguments relating to that. Some of the discussion of the evidence and phone sounded like a mistatement of what the record said, even beyond what the NFL said the evidence was.
Sometimes judges offer devil’s advocate kinds of questions, but at least as reported, it didn’t sound like that. The record is pretty big, and it is easy to get the details wrong as I’m very familiar with it and that sometimes happens to me.
Also to be fair to the judges, I think the briefing that the NFLPA did at the Judge Berman level was more focused on how the facts related to the law than the narrow direction that it took in front of the Second Circuit.
IMPORTANT CAVEAT: Particularly at the appellate level, judges do not always reveal their real thoughts through questioning. Though sometimes they do.
Never Know What Resonates With Judges. Before an argument, it is difficult to predict what particular arguments will resonate with judges. Though the guilt-innocence facts of Deflategate weren’t directly at issue in appeal, they are relevant to part of the arguments. It was surprising to see how much focus the judges gave on the facts, and how much they seemingly revealed about their views of them.
The NFL’s side of the argument is easy to deal with the facts because in essence the facts are irrelevant. The answer to all their questions is Roger Goodell has discretion to decide these things basically any way he wants to. The NFLPA’s argument is more nuanced as it relates to the facts, and if you don’t have an in-depth familiarty with the record, they can be hard to follow.
That one judge thought that the focus on notice was “hypertechnical,” it isn’t within the context of how the NFL typically handles discipline. Or even what Goodell has said in the past about the need to give players notice of offenses (pg 18). Just generally speaking, if you have no notice of what you are being accused of, of what is important to the investigator, and what the particular punishment will be, it makes it particularly hard to defend yourself. You are defending yourself against the shifting sand.
And if a judge actually thinks that the evidence in Deflategate is “compelling,” well, then, all I have to tell you is that you don’t want to be in that judge’s court if you are claiming innocence. Personally, I think if you look at just the info that Roger Goodell had in front of him, or the larger view that you get by looking at all the information, there are compelling reasons to think nothing happened.
The General Labor View Versus the Football Focused View. If you frame Deflategate as something that has vast labor law implications, then the NFL view of things has great appeal. If you frame this in the context of just a weird process the NFL used that doesn’t have wide ranging implications, then the NFLPA viewpoint makes more sense.
It sounds like two of the judges are framing it the first way and not in the context of the whole NFL-NFLPA Collective Bargaining Agreement (CBA). That makes some sense because most judges are familiar with general labor law/arbitration and not the specifics of the NFL-NFLPA’s dealings.
So What’s Next?
Court: Given the nature of the questions, from those who were there, they are predicting a 2-1 decision for the NFL. One way or another, just as a guess, I do not see the directions of the questioning sounding like anything would be remanded back to Judge Berman for more facts or further consideration.
I don’t think there are any compelling Constitutional/split circuit reasons why the Supreme Court would take this.
Goodell: Roger Goodell said the following at his Super Bowl presser about whether he would reinstate Tom Brady’s suspension if the NFL won. Goodall responded in part, “I am not going to speculate on what we are going to do. Depending on the outcome, we’ll let the outcome be dictated by the appeals court. When it happens, we’ll deal with it then.”
My belief is that he would reinstate the discipline if the NFL won because that would be consistent with what the NFL has done in the past.
Implications for All Fans: The attorney for the NFL basically said that though the suspension was four games, Goodell had the discretion to make it one year long suspension. Perhaps, more, who knows? If the NFL wins, it sounds like there would be nothing that would stop Goodell from deciding anything the way he wants to, even if there are specific rules that tend to govern a situation.
This will certainly be a concern in the next CBA negotiation for the NFLPA. They had concerns about this before the last CBA, but Goodell didn’t start exercising his powers in broad ways until after the last CBA was signed.
This should be a concern to fanbases who have no control over how Goodell does things but may be asked to pay for a compromised product on the field.
[Please feel free to leave legal oriented comments and questions below. Given my current schedule, I may not be able to moderate and answer them right away, but I will do my best.].