2016 2016: Q&A on Tom Brady’s ‘Deflategate’ suspension

UMass Law Professor Irene Scharf offers her reaction to the 2-1 decision and what legal options are left for the three-time Super Bowl MVP

The U.S. Court of Appeals for the Second Circuit has overturned Judge Richard Berman’s ruling and reinstated New England Patriots Quarterback Tom Brady’s four-game suspension. UMass Law Professor Irene Scharf offers her reaction to the 2-1 decision and what legal options are left for the three-time Super Bowl MVP.

How much is this a case of Tom Brady being a victim of the collective bargaining agreement for the NFL Players Association?

IS: The CBA seems in large part to have determined this result. It gives wide authority and discretion to the NFL Commissioner to make decisions, in the first instance, and to hear appeals of his own decisions. The NFL-PA agreed to this protocol.  The CBA obviously reflects many compromises, the most salient of which may very well be the players' inability/unwillingness to forgo salary "give-backs" for a more favorable written agreement.

What are your thoughts on the dissenting opinion by Judge Robert Katzmann? Why do you think the majority opinion by Judges Denny Chin and Barrington Parker didn’t also agree with the premise that the Commissioner’s is authority is indeed “broad,” but not “limitless” as Judge Katzmann argued?

IS: I think that, given the broad language and broad discretion the CBA grants the Commissioner, I tend to agree with the majority that Judge Katzmann, in comparing the punishment for deflated footballs to that involving steroid use on the one hand and the use of "stickum" on the other, is inserting his personal views of the proper punishment into the equation, which is not warranted. Judge Katzmann's earlier objection, though, may hold some water. While the section of the CBA in question allows the Commissioner to hear appeals, Judge Katzmann characterizes the Commissioner's second finding (following his initial finding pursuant to the Wells' Report), laying at Brady's feet more culpability, as an initial ruling, suggesting that he had no authority to review it "as an appeal."

What legal options are left for Brady and his legal team?

IS: Apparently the NFL-PA is "considering its options." Could the PA move for a Reconsideration? This is not a question I've had time to research, but I would not be optimistic from a Patriots fan’s perspective.

If the NFLPA lawyers find justification to request Reconsideration (and if Brady agreed to keep this going in the courts), it might be able to negotiate away 1-2 of the suspended games. The PA needs to find some reason to keep the case going in order to have any power to bring the Commissioner to the negotiating table. I have my doubts about that.

What’s your main takeaway from the majority opinion?

If there's only time for most people to read the first page of this opinion (it's lengthy), note its first sentence, as it provides a significant lens into the opinions of Judges Parker and Chin:  "This case involves an arbitration arising from New England Patriots quarterback Tom Brady’s involvement in a scheme to deflate footballs used during the 2015 American Football Conference Championship Game to a pressure below the permissible range."

I cringed when I read that.  Why?  Because it makes clear that Judges Parker and Chin, of the majority, believe that Tom Brady was involved "in a scheme to deflate footballs...."  They did not say "allegedly involved."

About Irene Scharf

Professor Scharf engaged in private practice for several years and was then counsel with state and local administrative agencies, including the Massachusetts State Ethics Commission. She served as a Special Assistant Attorney General (Commonwealth of Massachusetts Tobacco Litigation) and is a trained mediator in domestic relations, as well as an arbitrator and has arbitrated on behalf of the Financial Industry Regulatory Authority. Prior to her employment by the University of Massachusetts School of Law, she taught at the State University of New York, the University of Puget Sound School of Law (now Seattle University), Boston University Law School, Northeastern Law School, twice with the Institute on International and Comparative Law of the University of San Diego Law School’s Paris, France campus, and Southern New England School of Law. She is a member of the Massachusetts, New York, and federal court bars. Her scholarly work primarily concerns the rights of immigrants.

The CBA obviously reflects many compromises, the most salient of which may very well be the players' inability/unwillingness to forgo salary "give-backs" for a more favorable written agreement.