New England Patriots quarterback Tom Brady and the NFL Players Association (NFLPA) have received support from physics and engineering professors, one of the most powerful union federations, and the foremost arbitration expert in the nation. The Patriots themselves even went against the league to offer their help.
Well, Brady now has support from a group of legal experts.
A group of 11 law and labor relations professors have joined together to file a fifth amicus brief in support of Brady, and you can read it here. The professors come from universities like Cornell, Indiana, Seattle, Harvard, Texas, West Virginia, St. Louis, UC Berkeley, UCLA, and Smith.
These professors claim that "the panel's decision runs contrary to fundamental principles long settled by the Supreme Court," and "if left uncorrected, this decision may destroy the very process that the Court wishes to protect- the peaceful resolution of labor disputes through a non-arbitrary an fair proceeding."
A lot of their argument sounds like Kenneth Feinberg's, the big honcho of arbitration processes, which makes the basic case that an arbitrator is expected to act without bias, no exceptions. There doesn't- shouldn't- need to be a provision that says a mutually agreed upon arbitrator in a collective bargaining agreement (CBA) has to be neutral. It should always be the case.
Goodell was not neutral. So let's talk about fairness.
When the Second Circuit ruled in favor of the NFL and reinstated Brady's suspension, they gave extreme deference to Goodell's judgment and argued that nothing in the CBA explicitly prohibited Goodell's actions.
"Had the parties wished to allow for more expansive discovery, they could have bargained for that right," Judge Barrington Parker wrote in his decision. "They did not, and there is simply no fundamental unfairness in affording the parties precisely what they agreed on."
Essentially, the judges argue that if the players wanted different processes in place for an appeal, they should have negotiated it during the collective bargaining process. Goodell, based upon the authority granted him in the CBA in their view, has the free reign to do as he pleases.
With an exception.
"However, a narrow exception exists under the Federal 25 Arbitration Act ("FAA"), which provides that an award may be vacated where 'the arbitrators were guilty of misconduct . . . in refusing to hear evidence pertinent and material to the controversy,'" Judge Barrington notes. "We have held that vacatur is warranted in such a circumstance only if 'fundamental fairness is violated.'"
And so every single amicus brief filed in support of Brady has been about proving the lack of fairness in the process, and how Goodell was attempting to find Brady guilty at all costs.
The union federation argues that Goodell constantly changing the charges suggests bias. The Patriots show that the league was actively leaking false information and entered the investigation assuming guilt. Feinberg argues that the NFL actively withheld important information from the NFLPA. The scientists show that nothing happened in the first place, and that the NFL paid for junk science to support their lack of evidence.
The legal professors argue that "it is a critical error that the opinion by Commissioner Goodell, a non-expert, non-experienced and non-neutral arbitrator, makes no effort to follow or apply the established rules of fair and consistent process...It is difficult to avoid the conclusion that his failure to do comprises the fatal arbitration error of seeking to impose his own brand of industrial justice."
The fact that the NFLPA and the NFL entered into a CBA that grants the commissioner the right to serve as judge, jury, and executioner does not preclude the right to a fair and unbiased appeals process. The root of arbitration is the assumption that both parties will be working with a neutral arbitrator. Anything else is fundamentally unfair.
Instead of the CBA offering a limit to the power of the arbitrator, serving as guidelines to show what Goodell is allowed to do, the Second Circuit interprets the CBA as saying Goodell is allowed to do anything not explicitly stated.
The NFLPA and their "friends of the court" are trying to show how this interpretation of the arbitration process is fundamentally unfair. Hopefully the other judges on the Second Circuit agree.