Last year in a much-publicized case around New England and the United States, Patriots star quarterback Tom Brady received a four-game suspension from the NFL pursuant to Article 46 of the NFL collective bargaining agreement for “engaging in conduct detrimental to the integrity of the public confidence in the game of professional football.”
“Deflategate” as it was known around New England angered Patriots fans who thought the suspension was grossly unfair as it tarnished Brady’s golden-boy image. NFL Commissioner Roger Goodell (ironically acting as his own appeals court) upheld the suspension he gave Brady after hearing 10 hours of sworn testimony, arguments and approximately 300 exhibits. Brady appealed the decision to the United States District Court for the Southern District of New York, which vacated the suspension. The court reasoned that Brady lacked notice of a potential suspension because the provisions related to tampering with footballs only provided for a fine and did not allow for a suspension. The court also reasoned that Goodell “deprived Brady of fundamental fairness” (see Endnote) as he could not review notes from Paul Weiss, the law firm the league originally hired to conduct the investigation, and he could not review the testimony of Jeff Pash – the NFL’s general counsel. The NFL appealed the decision and the United States Court of Appeals for the Second Circuit reversed the decision.
Dallas Cowboys running back Ezekiel Elliott is having a court experience similar to Brady’s. In July 2016, Columbus, Ohio law enforcement investigated allegations made by Elliott’s girlfriend that he committed domestic violence. Law enforcement found no probable cause for arrest and decided not to prosecute. The NFL, under its own personnel conduct policy, headed an internal investigation into the allegations and ultimately suspended Elliott for six games. The National Football League Players Association sought to overturn the suspension because, they argued, Elliott did not receive a fundamentally fair hearing – an argument similar to Brady’s defense a year ago. The United States District Court for the Eastern District of Texas overturned the suspension on the grounds that Harold Henderson, the arbitrator in Elliott’s case, conducted a fundamentally unfair hearing because he refused to allow Elliott’s accuser and Commissioner Roger Goodell to testify at the arbitration hearing. The preliminary injunction of the suspension Elliott received allowed him to start the season and play. Not surprisingly, the NFL appealed the issuance of the injunction to the United States Appeals Court for the Fifth Circuit. In early October, the Fifth Circuit vacated the District Court’s preliminary injunction and reinstated Elliot’s suspension – the same way that the Second Circuit reinstated Brady’s suspension.
Endnote – Judicial review of an arbitration award is extremely narrow. When asked to vacate an arbitration award, the court can only answer the question of whether the proceedings were fundamentally unfair. They cannot consider the merits of the award.