By Alexander Bachuwa, Esq.
Did Tom Brady, quarterback for the New England Patriots, cheat? Should someone besides Roger Goodell, Commissioner of the NFL, have acted as the arbitrator for Brady's appeal? Despite the media's fixation with these questions, they are not issues for the courts. The agreement between the NFL and the players to arbitrate such disputes effectively ended this debate long before the sports world ever knew the appropriate PSI for a football.
The Deflategate saga began on January 18th, 2015 when the New England Patriots defeated the Indianapolis Colts in the AFC Championship Game. The following day the NFL began an investigation amid allegations the footballs used in the game were underinflated. On May 6th, the Wells Report was released which found that it was "more probable than not" that Brady violated NFL rules. On May 11th, the NFL suspended Brady for four games. On May 12th, Brady contested the suspension, which was followed by an appeals hearing on June 23rd, where Commissioner Goodell presided as the arbitrator. On July 28th, the suspension was affirmed by the NFL. On September 3rd, the US District Court for the Southern District of New York overturned the arbitral award. Finally, on April 26th, 2016 the United States Court of Appeals for the Second Circuit reversed the District Court and ruled in favor of the NFL.
Did Brady cheat? The answer to this question depends on whom you ask. Some Patriot fans believe it is a NFL led conspiracy against their team and their beloved Tom Brady. Some former NFL quarterbacks have unequivocally stated there is no way that the footballs could have been so underinflated but for Brady's orders. Despite the controversy, Brady's guilt or innocence was not the issue before the appellate court. While many had hoped the court would reexamine the facts of the case, the US Court of Appeals for the Second Circuit properly confined their assessment to issues of procedure writing, "Our role is not to determine for ourselves whether Brady participated in a scheme to deflate footballs . . . Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act."
Should Goodell have decided the outcome of Brady's appeal? The answer to this question is yes. Goodell, acting in the role of NFL Commissioner, is empowered to hand out player suspensions as he sees fit. Goodell, through the collective bargaining agreement, is also granted the authority to serve as arbitrator when disciplinary sanctions are appealed. On its face, this arrangement does not comport with principles of fundamental fairness. Regardless of the optics, this was the agreement of two competent contracting parties: the NFL and the players. The Appellate Court wrote, "The players and the League mutually decided many years ago that the Commissioner should investigate possible rule violations, should impose appropriate sanctions, and may preside at arbitrations challenging his discipline. Although this tripartite regime may appear somewhat unorthodox, it is the regime bargained for and agreed upon by the parties, which we can only presume they determined was mutually satisfactory."
Should the arbitral award be respected? The answer to this question is a resounding yes. Arbitration was the dispute resolution mechanism agreed to between the NFL and the players. The outcome of the arbitration should have been the end of the process. But unsatisfied with the outcome, Brady moved to vacate the award through the courts. Brady's decision to contest the award proved to be a waste of time, money, and resources because the findings of an arbitrator are final and binding. The Appellate Court stated, "this case is not an exceptional one that warrants vacatur. Our review of the record yields the firm conclusion that the Commissioner properly exercised his broad discretion to resolve an intramural controversy between the League and a player."
For all its theatrics, Deflategate was nothing more than a simple arbitration proceeding where two parties were bound by the terms of their agreement. Regardless if Brady cheated, if Goodell should have recused himself from the process, the appellate court's ruling is a marked victory for the finality of arbitration, a headline that should not go unnoticed.
Alexander Bachuwa, Esq. of Bachuwa Law has extensive international experience working abroad in Asia and Europe, focusing on alternative dispute resolution and sports management. He has an MBA in Global Finance from Thunderbird School of Global Management, a JD from Arizona State University, and a BA in economics from University of Michigan. Alexander is licensed to practice in New York, Arizona, is a Foreign Registered Attorney in Mongolia, and a FIBA licensed agent. He has also been admitted to all New York and Arizona federal courts. Alexander is conversational in Arabic, Spanish, and Mandarin. Contact Alexander at nomadresolutions.com or globallsportsmgmt.com