Adam Schorr’s Employment Case of the Week ending September 4, 2015

National Football League Management Council v. National Football League Players Association, 1:2015cv05916 (SDNY Sept. 3, 2015)

This week’s case is better known as the “Deflategate” case.  There has been a lot of analysis on what this means for Tom Brady, the Patriots, and the NFL, but this case also has useful lessons for employees in all arenas.

A brief summary of the facts, for those non-sports fans who aren’t aware of the controversy.  The NFL has a policy that all balls used during games must be inflated to a certain range.  After a playoff game between the New England Patriots and the Indianapolis Colts, the Colts alleged that the Patriots intentionally deflated their balls below the allowable range and thus had gained an unfair advantage.  The NFL initiated an investigation, led by Ted Wells, an outside attorney, and Jeff Pash, NFL General Counsel.  The end product was a 139 page report written by Wells finding that “it is more probable than not that Brady was at least generally aware of the inappropriate activities of [two Patriots employees] involving the release of air from Patriots game balls.”

Following the report, Commissioner Roger Goodell and Executive Vice President Troy Vincent decided to punish both the Patriots and Brady.  Specifically, Brady was suspended four games for being generally aware of the activities and for not fully cooperating with the investigation, as he had not provided his cell phone for examination. Brady appealed, and Goodell appointed himself as arbitrator and refused to recuse himself.  Goodell also refused to allow Brady to examine Pash and many of the investigative notes, or to have copies of any documents regarding other players punished for not fully cooperating with an investigation.  After the arbitration hearing, Goodell upheld the punishment he had decreed on the basis that deflating footballs is like taking performance-enhancing drugs, which itself carries a four game suspension, and this lawsuit followed.

The Court, after acknowledging that arbitral decisions are rarely disturbed, ruled that there were such significant legal deficiencies that the Court had no choice but to overturn the decision.  First, the Collective Bargaining Agreement did not allow for the imposition of a four game suspension for either being “generally aware” of the misconduct of others or for not fully cooperating with an NFL investigation, and so Brady did not have notice that his actions could result in a four game suspension.  Second, Goodell denying Brady the opportunity to examine Pash and the documents Brady requested was fundamentally unfair and prejudicial, not allowing Brady to confront his investigators nor see the notes that they had access to.

While this decision certainly has implications for the NFL, there are lessons to be learned for all employees.  Employees should be advised to avoid arbitration if possible, precisely because arbitrators are not always completely fair or unbiased.  In this case, the bias of the arbitrator was so egregious as to warrant overturning the arbitrator’s decision, but most employees will not be so lucky.

Furthermore, in the typical employment discrimination case, the employer needs to articulate a legitimate, non-discriminatory reason for their actions.  This is a good example of how to fight the employer’s stated reason. Most employers have either a collective bargaining agreement or an employee handbook outlining conduct that can be penalized and what penalties are appropriate for such conduct. Showing that the employer failed to follow their own policies is a strong way to show that the employer’s stated reason is pretextual.

Despite the high-profile nature of this case, it was nothing more than a typical employment case.  It is always good to see an employee win in court.  I just don’t want to see this one win on the field.

Tom Brady’s Counsel: Jeffrey Kessler, Winston & Strawn.

NFL Players Association Counsel: Tom DePaso, General Counsel.

NFL Management Council Counsel: Robert Hardy Pees, Akin Gump Strauss Hauer & Feld LLP; Jeffery Pash, General Counsel.

Judge: Richard M. Berman, U.S.D.J.