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DeflateGate: AFL-CIO, Kenneth Feinberg file amicus briefs supporting Patriots QB Tom Brady

The American Federation of Labor and Congress of Industrial Organizations and one of the United States' most prominent arbitrators filed briefs today arguing in favor of Brady.

Deflategate, the scandal/farce that never sleeps. Last week, New England Patriots quarterback Tom Brady's highly-touted team of lawyers filed a petition to rehear his case against the NFL, after the Court of Appeals for the Second Circuit sided with the league in early April and reinstated Brady's four-game suspension.

Since the filing, Brady and his petition has seen support via amicus briefs – filings by literal "friends of the court", parties not involved in the case – filed by a group of more than 20 scientists from universities around the country and the Patriots themselves.

Now, he has two other strong supporters on his side.


According to the Boston Herald's Bob McGovern, the American Federation of Labor and Congress of Industrial Organizations – the AFL-CIO – has filed an amicus brief supporting New England's quarterback. The AFL-CIO is the largest federation of labor unions in the United States and its support should help Brady's chances of getting a rehearing in front of either the three-men panel that sided 2-1 with the NFL or, more likely, all 14 active judges on the Second Circuit.

In its brief, the AFL-CIO had some harsh words for the NFL and particularly its commissioner, Roger Goodell:

While the NFL and NFLPA bargained to allow the Commissioner to hear appeals of disciplinary decisions, they did not agree to let the Commissioner, sitting as an appellate arbitrator, to act in a manner that is arbitrary and capricious. Regardless of who hears appeals, labor arbitration always must be fundamentally fair.

The union umbrella organization particularly questions Goodell's abilities to neutrally hear an appeal, calling it an "error" make a non-neutral person, who "failed to follow basic procedural fairness and acted arbitrarily", arbitrator in this case.

The AFL-CIO's filing can be read here in its entirety.

2) Kenneth Feinberg

The AFL-CIO is not the only party to file an amicus brief supporting Brady today: according to Daniel Wallach, Kenneth Feinberg, a long-time arbitrator and administrator of the 9/11 victims fund, did the same. According to his filing, Feinberg has a strong interest in the case...

[...] because it raises fundamental questions bearing on the legitimacy of arbitration as a means of alternative dispute resolution, including: the notice and opportunity to respond that must be afforded to parties, arbitrators' power to disregard contractual language and past practice, and arbitrators' ability to advance partisan interests.

Feinberg then went on to harshly criticize the NFL's arbitration process, calling Goodell's decision to upheld Brady's originally issued four-game suspension "[lacking] even the basic hallmarks of due process – a fair process, before a fair tribunal."

Just like Brady's legal team did in its filing last week, Feinberg tackles the issue in broad, labor-related terms, saying that...

If [the panel's decision] is permitted to stand, parties will and should question the risk posed by arbitration.

Feinberg did not only question the process but Roger Goodell as well, saying that the commissioner "reshaped the parties bargain to favor the NFL" and that he "impermissibly exceeded the scope of his authority [and], then created new substantive and procedural rights not contemplated by the CBA".

Overall, the 70-year old Massachusetts-native, posted two arguments why a rehearing should be granted...

I. Procedural Integrity Is Inherent To The Viability Of Arbitration

II. The Commissioner’s Procedural And Substantive Determinations Were Arbitrary, Biased, And Beyond The Parties’ Grant Of Authority.

...before concluding with the following sentence:

Fair process before a fair tribunal cannot be an aspiration; it is an unwaivable, inviolable necessity.

To read Feinberg's highly recommended brief, click here.


Ever since Brady vs. the NFL entered the United States court system it became clear that Deflategate has grown from a question about air pressure inside footballs to a full-fletched labor dispute. The two amicus briefs filed today show this once more – and should substantially help Brady's chances to get a rehearing.