Free Brady: How I Learned to Stop Worrying and Love the Federal Arbitration Act

 

Let’s start with the undisputed facts of life:

  • We call Bill Belichick “godfather” out of fear that if we had the audacity to say his true name the hand of God would reach down from the heavens and strike us dead for this act of rampant arrogance.
  • When married to Giselle, athletes can play in the NFL until they are 70 – indeed, they become immortal.

If you “disagree” with any of these facts, then our firm may not, in good conscience, be able to represent you due to these reprehensible views, which are strongly indicative of rampant moral turpitude.

Just kidding… sort of.

A QUICK Q&A PRIMER

So… Question: How does a walking demi-god such as Tom Brady become ensnared in the petty, self-aggrandizing shenanigans of a simian man-child such as NFL Commissioner Roger Goodell?

Answer: The Federal Arbitration Act.

Question: What’s arbitration?

Answer:  Arbitration is private litigation created by contractual agreement (typically in advance), where the parties resolve their dispute by presenting it to a private lawyer who then rules on the matter. Arbitration offers three distinct advantages over traditional litigation:

  • Speed – disputes can be resolved in months instead of years;
  • Cost – simplified rules of procedure and evidence mean less motions practice and other vexatious and dilatory tactics that unnecessarily drive up legal bills; and
  • Finality — though not impossible, it is extremely difficult to overturn arbitration awards, and in most cases courts will affirm them upon summary judgment, without the lengthy appellate procedure that would otherwise apply in traditional litigation.

Question: Who cares?

Answer: You should.

You may think arbitration has nothing to do with you. Which is true, so long as you’ve never borrowed money from a bank, pulled a mortgage, rented a car, taken a flight, signed up for a cell phone plan, leased an office or used the internet. If you’ve done any of those things, or countless others such as own a condo, have a professional agent, or play in the NFL, then you (along with Tom Brady) are subject to arbitration pursuant to the Federal Arbitration Act.

Question:  Who’s Roger Goodell?

Answer:    [REDACTED]

                  [REDACTED]

                  [REDACTED]

According to the Federal Arbitration Act, any vile human being, no matter how clueless and utterly self-serving they may be, could potentially serve as an arbitrator under the FAA. Seriously, see above. Even Roger Goodell.

THE SCOOP

In the arbitration, Goodell appointed himself the arbitrator to hear Brady’s appeal from the original decision that Goodell himself had penned. That opinion had screaming flaws in it, including the following:

  • The 193 page “Wells Report,” for which the NFL paid law firm Paul Weiss $3,000,000 to prepare, only found it to be “more likely than not that Brady was generally aware” of the deflation activities of the Patriots equipment manager and locker room attendant.
  • Goodell often referred to the Wells Report as “independent,” despite the fact that, in addition to preparing the Report, Paul Weiss also represented the NFL at the arbitration hearing, and acted as their long term outside general counsel.
  • Goodell’s opinion relied on policies contained in the “Game Operations Manual,” which is provided to owners, managers, head coaches, etc., but not to players.
  • To the contrary, the Players Policies, which is issued to players, only puts them on notice of the fact that breaking the rules of equipment use could result in fines, not suspensions.
  • Lastly, while the Wells Report found it to be “more likely than not” that Brady was “generally aware” of the deflationary activity by Patriots staff, it is nowhere stated in the players policy that general awareness of the misconduct of others is a chargeable offense.
  • To cover the fact that there was no evidence that Tom actually directed the activity, Goodell deliberately reinterpreted the Wells Report finding that Brady “was generally aware” of the deflationary activity, into a finding that Tom “participated” in the same.
  • As a procedural matter, Arbitrator Goodell denied Brady’s motion to compel production of co-lead investigator Jeff Pash’s notes, and to produce him for questioning, to see how he had influenced any initial drafts of the purportedly “independent” Wells Report.

THE LAW

Initially, the federal district court for Southern District of New York overturned the award based on numerous screaming inconsistencies that the Court found to be intolerable in light of the Federal Arbitration Act. The Act allows a Court to overturn an arbitral award on a number of independent bases, including the following:

  • “where the arbitrators were guilty of … refusing to hear evidence pertinent and material to the controversy.” 9 U.S.C. § 10(a)(3);
  • “where there was evident partiality … ” 9 U.S.C. § I0(a)(2).

Moreover, a “principal question for the reviewing court is whether the arbitrator’s award draws its essence from the collective bargaining agreement, since the arbitrator is not free to merely dispense his own brand of industrial justice.” 187 Concourse Assocs. v. Fishman, 399 F.3d 524, 527 (2d Cir. 2005).

THE DECISION

Based on the fact that Goodell was self-appointed judge, jury and executioner, together with the fact that he drew disciplinary standards from a code of conduct that did not apply to players, and dispensed his own form of justice by treating an equipment violation as equivalent to the use of anabolic steroids, then deliberately misinterpreted an “independent report” produced by his own general counsel, the district court vacated the entire arbitration award.

In other words, although arbitrators are granted significant leeway by the FAA, Goodell created a kangaroo court of such rampant prejudice and disgrace that it was akin to a military junta in the jungles of Colombia, and not anything resembling a neutral dispute resolution process. For this reason, Senior Judge Berman was unable to stomach the inequity imposed by Goodell’s military fiat and vacated the suspension, effective immediately.

On Appeal, the Second Circuit Court of Appeals held that, under the collective bargaining agreement entered into by the Players’ Association, they themselves had installed Goodell as their supreme leader, and empowered him as an eternal dictator a-la Kim Jung Un. The NFL Players’ association have sacrificed any modicum of due process or fundamental fairness by negotiating a contract which gives Goodell unchecked leeway to abuse players and pick his favorites among them, with no accountability. The team owners who pay Goodell’s $34.1 million dollar salary countenance this iniquity because Goodell brings in untold billions to the NFL overall. “You made your bed,” said the Second Circuit Court of appeals, “now go lie in it,” for 4 weeks.

THE MORAL OF THE STORY

Instead of spending a decade in litigation, the matter was done and settled in 18 months. The outcome was flagrantly incorrect. As a result of this glaring injustice, our lord and savior Tom Brady was allowed an extra 4 weeks to spend quality time with his Brazilian supermodel wife, Gisele Bündchen. This extended tryst inspired in his heart the flame of Bahian Carnival which carried Lord Brady to his fifth Super Bowl victory.

Thanks Roger! We’re happy to arbitrate with you anytime, buddy. Long live the FAA!

Photo Courtesy of Gisele Bündchen (@giseleofficial) via Twitter

Nao se preocupen, ele vai estar preparado.

“Don’t worry guys, he’ll be ready.”  

Need legal help? Feel free to shoot Carlos an email at cduque@jpfsecurities.com.

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