In the midst of all the amicus briefs, we haven't discussed the note from Jenny Vrentas of Monday Morning Quarterback on New England Patriots quarterback Tom Brady and the appeal of his four game suspension.
"I think it’s interesting that the players unions for the other three major pro sports—MLB, NBA and NHL—will not be filing amicus briefs in support of the NFL Players Association and Tom Brady’s appeal of the quarterback’s four-game suspension to the Second U.S. Circuit Court of Appeals," Vrentas writes. "I’m told that the other three unions sought and obtained consent to file, but will not. While it’s hard to know exactly why, it could be a reflection of how much of a long shot Brady’s appeal is, or an understanding of the fact that the commissioner’s powers are broader in the NFL than in other leagues."
Why would these player unions from the other three major North American sports look into filing, but ultimately decline to support Brady?
I spoke with Daniel Wallach of Becker & Poliakoff about possible thought processes behind the decision. Wallach is "a nationally recognized authority on sports law" and has practiced in front of the United States Supreme Court.
This could be why the other unions walked away.
There would have been costs to file briefs
"It wouldn't have made much economic sense for the other players unions to file briefs," Wallach said in a phone interview. "I mean, somebody has to pay for these legal files. They're not free. Lawyers don't work pro bono. So this is going to be coming out of the pockets of union dues from hockey players, baseball, and basketball players, and the question becomes how much value, or bang for the buck, would the players of these other sports get from filing a brief or supporting brief in DeflateGate, when not much benefit would be gained from it."
Wallach noted that the legal dues could cost up to $50,000 based on hourly rates, and that the reward for the other player unions was not worth the risk- because there probably isn't any reward at all.
The NFL is unique in its arbitration process
"The powers of the commissioners in the other sports are quite different," Wallach said. "The way appeals are handled in the other sports are quite different. They are handled principally by independent arbitrators. The very deficiency that Brady complains about in the NFL is simply not a factor in the NHL, Major League Baseball, or the NBA.
"It would be all well and good for the other unions to support Brady in his quest to overturn the Second Circuit's decision, but it's not going to move the needle. There's nothing that the baseball players, hockey players, or basketball players can say about their collective bargaining agreements (CBA) that are comparable. It's like comparing apples to oranges.
"They do not suffer from the same judge, jury, and executioner syndrome that harms Brady."
Essentially, the NFL is the only league where the commissioner holds such ridiculous power in the arbitration process. The other leagues could file in support of the NFL, but the Brady decision won't have an impact on how the arbitration process functions in other sports- and filing could actually hurt Brady's chances.
Uniqueness of NFL CBA could have bit the NFLPA in the end
"[The other unions filing briefs] could also be seen as harming Brady's interest," Wallach noted. "Because those other unions fought for, negotiated, and collectively bargained for a different system of arbitration and legal filings from three players unions that fought for a different mode of arbitration could underscore the point that that the NFL Players Association and Brady got exactly what they bargained for. The NFL would likely respond to those amicus briefs by pointing out that very fact."
Think about it. The NFL's argument is rooted in the belief that the commissioner has been intentionally granted complete power through the CBA. If three other leagues come over with entirely different arbitration processes, the NFL can point and say, See? That sort of language was possible, but the NFLPA agreed to our language. Therefore, the language in our CBA was intentional.
Any filing could create a rocky road for the unions
"Whatever the other unions file, wouldn't necessarily become ammunition in a future negotiation," Wallach explained. "Because they would be arguing something consistent with the positions they've previously taken that the commissioner shouldn't have that kind of overarching power to be judge, jury, and executioner. The effect of an amicus brief is pretty much limited to the case at issue.
"Although representations and arguments made in a brief can surface in other settings. It's a public document and if the union, or any litigant, takes a position in one case, there's always the potential that position can be used against them in some other legal setting.
"I don't see that as a real risk here; I think what it comes down to that their involvement could end up doing more harm than good based upon their different structure for having appeals of disciplinary decisions heard."
You know how the NFL dug up a quote from Brady on a radio show saying that he likes his footballs on the softer side, and tried to submit that as evidence of a deflation scheme? Well, if the other unions filed a brief, it goes on the public record and can become a part of any future discussion for the unions to get Goodell'd down the road.
It's not a major issue, in Wallach's mind, but it's certainly another reason for the other leagues to balk at filing.
Support from other sports unions isn't what the NFLPA needs
"Those are not the unions that matter," Wallach said. "The unions that would get the judges' attention are major labor unions, like Teamsters, or the American Federation of Labor. [Editor's note: this interview took place a couple hours before the AFL-CIO filed a brief. Nice three-point shot from Wallach] I don't believe a majority of 13 judges on the Second Circuit bench are going to be too moved or swayed by what the National Hockey League players say on the issue when their Collective Bargaining Agreement provides for a different mode of appellate arbitration.
"The more that it's limited to the sports realm, the less interested, I believe, the Second Circuit judges will be at rehearing the case. It's not about sports. It's about the rights of unionized labor to challenge disciplinary decisions and what does it mean to have an appeal."
The NFLPA needed to paint the Second Circuit's decision as an outcome that will have sweeping consequences across all labor relations if upheld. The support of other sports unions wouldn't have meant much, but having the AFL-CIO, which represents firefighters and musicians and plumbers and more, file a brief makes this a far greater issue worth reconsidering.
What's the possible timeline?
"I definitely see a ruling or an order from the Second Circuit before the end of June," Wallach said. "There's no question in my mind that expedition will rule the day. I'm pretty resolute in believing that the Second Circuit will act quickly on this, either by denying the petition outright before even hearing from the National Football League, or ordering the National Football League to file a response.
"We're going to hear one way or the other before the 4th of July holiday. It doesn't mean that will be the final ruling on rehearing, but we'll hear from the Second Circuit as to whether they want more information or will just outright deny the petition before the end of June. [The decision for the rehearing] is not going to marinate for a period of months."
If the rehearing is granted, Brady won't be cleared for another year or two, but we'll know if the courts will move forward with the next step, or if they'll just say no thanks in the coming weeks.
Thanks to Daniel Wallach for his time. You can follow him on twitter here.