Following through on what they promised after Roger Goodell upheld Tom Brady’s four game suspension for his part in the deflation of footballs prior to the AFC Championship game against the Colts, Brady and the NFL Players Association filed suit against the NFL in federal court, seeking to vacate the suspension.
The suit (which you can read in full below) argues that Roger Goodell made shit up as he went along, in contravention of the CBA:
Thumbing its nose at the Peterson order, Commissioner Goodell’s Award upholds Brady’s four-game suspension in its entirety despite the undisputed arbitration record of several egregious notice defects: Brady had no notice of the disciplinary standards that would be applied to him; no notice of the disciplinary policies that would be applied; and no notice of the potential penalties. In fact, the NFL collectively bargained over the punishments (fines, not suspensions) for alleged equipment tampering by players-including those designed to gain a competitive advantage-and was not free to disregard that CBA bargain and subject Brady to other standards, policies, and penalties without any notice at all.
The suit alleges that the actual arbitration hearing was a farce, with the Brady team not having access to certain evidence and the “independent” law firm that conducted the Wells Report actively helping the NFL cross-examine Brady:
On June 8, 2015, Goodell held the arbitration. See NFLPA Ex. 204. The hearing defied any concept of fundamental fairness. Prior to the hearing, Goodell had ruled that Brady and the Union could not question essential witnesses, denied them access to the investigative files underlying the Wells Report (which were nonetheless available to the NFL’s counsel at the arbitration), and summarily rejected Brady’s unlawful delegation argument without considering any evidence (other than “facts” decreed by Goodell himself in his decision). At the hearing itself, Paul, Weiss—the purportedly “independent” law firm whose findings about Brady were being challenged—abandoned all pretense of objectivity, and actively participated as counsel for the NFL conducting direct and cross-examinations of witnesses (including Brady’s). A Paul, Weiss partner represented the NFL for most of the hearing, even though he was a signatory to the Wells Report and his law partner (Wells) was a fact witness at the same hearing.
After Goodell handed down the four game suspension, Brady appealed. Goodell decided to hear the appeal himself, which is generally allowed under the CBA. But Brady and the NFLPA argue that in this case Goodell’s own conduct is at issue, and in previous such cases Goodell has concluded he had to recuse himself. They also cite a previous ruling from when Paul Tagliabue was commissioner:
Although the NFLPA agreed that the Commissioner or his designee could serve as the arbitrator for ordinary Article 46 disciplinary appeals, the NFLPA did not agree that the Commissioner could do so under circumstances where, as here, the Commissioners own conduct is at issue.
Accordingly, in two recent prior arbitrations in which the Commissioner’s own conduct and statements were at issue—Bounty and Ray Rice—even Commissioner Goodell concluded that he had to recuse himself. See NFLPA Exs. 113. 124.
Additionally, in a similar situation involving former NFL Commissioner Paul Tagliabue, a New York court held that he could not lawfully serve as arbitrator over a player dispute—even though the NFLPA had previously agreed to Commissioner arbitration—because the proceeding put at issue Commissioner Tagliabue’s own conduct. See, e.g. Morris v. N.Y. Football Giants, 575 N.Y.S.2d 1013, 1016-17 (N.Y. Sup. Ct. 1991).
One of the issues at crux is the “destroyed” cell phone, which Brady says was merely recycled. He says he didn’t turn it over on the advice of his lawyers, and that he wasn’t informed that failing to turn over his phone could be used against him. If he had been informed that was the case, he says he would’ve gone against the advice of counsel and turned over the phone.
The suit also argues that Brady did turn over all phone records of whom he texted and when, and that Wells was given access to both equipment assistant John Jastremski and equipment manager Dave Schoenfeld’s phones. Therefore, the suit argues, the NFL did have access to Brady’s exchanges with these men. It also notes that Brady’s phone records showed no communication with locker room attendant Jim McNally.
Prior to the appeal hearing, Brady voluntarily produced all of the requested communications in his possession (see infra \ 86). The NFL does not dispute that these communications contain absolutely no incriminating information. Instead, the NFL complains that they do not include all of the requested text messages because Brady disposed of his phone (consistent with his practice over many years). but Brady produced all of his phone records (showing whom he texted with and when) and testified at the hearing—just as he had told Wells and Reisner months before at his interview—that there never were any incriminating e-mails or text messages for the simple reason that he had nothing to do with any ball deflation. Hr’g Tr. 85:13-86:1, 86:21-23, 89:24-90:9. While the Award makes much of the discarded phone, Bradys phone records confirm that theLeague had access to any text messages between Brady and Jastremski and Schoenfeld because the League had access to their phones, and Brady simply had no phone or electronic communications of any kind with McNallv.
Finally, here is the quick tl;dr, the main four points of Brady’s argument, as laid out in the suit:
- Brady had no notice that a player could be disciplined for mere “general awareness” of another persons conduct
- Under the collectively bargained player policies Brady had notice only of fines—not suspensions—for equipment violations designed to gain a competitive advantage
- Brady had no notice of the policy under which he was disciplined
- Brady had no notice that a player could be suspended for a failure to cooperate
You can read the entire suit below. If anything jumps out at you, drop it in the comments: