Wrestling with Brady (and why you should stop crying over it)

And so it begins again. All the way from the far reaches of the great halls, taverns, pubs, trains, highways and byways of New England come the howls of its’ citizens. With anger not seen in New England since Grady Little left Pedro Martinez in a little too long in the ALCS, the residents of the Hub of the Universe and its surrounding burbs and towns are up in arms. This time, because a three-judge panel from the Second Circuit Court of Appeals has ruled in a 2-1 decision that Tom Brady will have his four-game suspension from the “Deflategate” Scandal reinstated. Yes, that Tom Brady, the fantasy baby’s daddy of half of New England (and actual baby’s daddy of who knows how many) is suspended again. For now. And like it or not, it is entirely justified.

Right about here, is where the folks come in who will scream, “But, Brady didn’t do anything!” Except, of course, he did do something. And what he did hurt him. But that is not why the reinstating of the suspension is justified. No, it is justified because the players screwed themselves.

What did Brady do?

Keep in mind, the standard of proof for his hearing was a mere “more probable than not” standard. And at first, blush, that evidence is not much. The NFL investigation concluded that it was “more probable than not” that two Patriots equipment officials, Jim McNally and John Jastremski (“the football flunkies”), “participated in a deliberate effort to release air from Patriots game balls after the balls were examined by the referee.” Specifically, the Report found that McNally had removed the game balls from the Officials’ Locker Room shortly before the game, in violation of NFL protocol, and took them to a bathroom, locked the door and used a needle to deflate the Patriots footballs before bringing them to the playing field. While this does not look good and it sure looks fishy, this is not what implicates Tom Terrific. It is what happened next that hurt him.

In addition to videotape evidence and witness interviews, the investigation team examined text messages exchanged between McNally and Jastremski in the months leading up to the AFC Championship Game. In these messages, the two discussed Brady’s stated preference for less‐inflated footballs. McNally referred to himself as “the deflator” and wrote that he was “not going to ESPN . . . yet,” and Jastremski agreed to provide McNally with a “needle” in exchange for “cash”, “new kicks,”(a term for shoes) and memorabilia autographed by Brady. Which goes to show how easy it is to buy off an equipment manager.

Although the evidence of his involvement was “less direct” than that of the football flunkies, the Wells Report concluded that it was “more probable than not” that Brady had been “at least generally aware” of their actions. The Report found it “unlikely that an equipment assistant and a locker room  attendant would deflate game balls without Brady’s” “knowledge,”  “approval,” “awareness,” and “consent.”   This conclusion was certainly a reasonable one, but it was also speculative. Or at least it was until we see a bit more in the investigation.

The Report cited a text message exchange between McNally and Jastremski in which McNally complained about Brady and threatened to overinflate the game balls, and Jastremski replied that he “[t]alked to [Tom] last night” and  “[Tom] actually brought you up and said you must have a lot of stress trying to get them done.”  [Now if that does not strike you as something odd to be discussing before Deflategate ever becomes an issue then you are a homer for the Patriots.Shout out to everyone in PCW-Northeast, Chaotic Wrestling, and New England Championship Wrestling. And the Lowys] Brady was a “constant reference point” in the discussion the football flunkies had about the deflating scheme. And then things got weird.

After more than six months of not communicating by phone or message, Brady and Jastremski spoke on the phone for approximately 25 minutes on January 19th, the day the investigation was announced.  This continued over the next two days.  Brady also took what was described as the “unprecedented step” on January 19 of inviting Jastremski to the quarterback room, and sent Jastremski several text messages that day apparently designed to calm him down. And then, Brady refused to make available any documents or electronic information (including text messages and emails) even though the investigators offered to allow Brady’s lawyers to screen the production of such evidence. And then Brady destroyed the cellphone on the same day he was to be interviewed by the investigators. That, my friends, is some shady action there.

OK, So Brady probably ran the whole Deflate scheme. Does that merit a 4-game Suspension?

Probably not. Probably merits a fine. Maybe a one or two game suspension. Brady is getting four games because of the cover-up and his reticence in cooperating with the investigation, though that was not Goodell’s rationale. In his ruling, The Commissioner compared Brady’s conduct to that of steroid users, whom he believed seek to gain a similar systematic competitive advantage, and consequently affirmed that, in his view, the four‐game suspension typically imposed on first‐time steroid users was equally appropriate in this context.

But wait! Wasn’t the suspension set-aside because Brady was innocent?

No. Not even close to a yes. The original suspension was appealed to the Arbitrator, who under the Collective Bargaining agreement was Commissioner Roger Goodell. You just read how he ruled. The NFL tried to confirm the award in Federal District Court. The Players’ Association sought to vacate the award. On September 3, the district court issued a decision and order granting the Association’s motion to vacate the award and denying the League’s motion to confirm.  The court reasoned that Brady lacked notice that he could be suspended for four games because the provisions applicable to his conduct provided that only fines could be imposed.  The court also held that the award was defective because the Commissioner deprived Brady of fundamental fairness by denying the  Association’s motions to compel the production of internal notes and testimony regarding some personnel’s involvement with the Wells Report.  The League timely appealed and the Second Circuit reversed rejecting all of the arguments from Brady and the NFLPA

Why did the Second Circuit reverse the decision? They must be haters too!

Put the tinfoil hat down and let us quickly review. The Court looked at both the Federal Arbitration Act and the NFL-NFLPA Collective Bargaining Agreement. Noting that “Under this framework of self‐government, the collective bargaining agreement is not just a contract, but “a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate.” The court noted that collective bargaining agreements are not imposed by legislatures or government agencies, but are negotiated and refined over time by the parties themselves so as to best reflect their priorities, expectations, and experience.    Similarly, the arbitrators are chosen by the parties because of their expertise in the particular business and their trusted judgment. In essence, the NFLPA signed on for this. And that includes Tom Brady.

The Court noted that “Here, the parties contracted in the CBA to specifically allow the Commissioner to sit as the arbitrator,” and “They did so knowing full well that the Commissioner had the sole power of determining what constitutes ‘conduct detrimental,’ and thus knowing that the Commissioner would have a stake both in the underlying discipline and in every arbitration [falling within his jurisdiction]. Had the parties wished to restrict the Commissioner’s authority, they could have fashioned a different agreement.”

Yes, the CBA gives the Commissioner the power to serve as Arbitrator for disputes of his own rulings. And the Federal Arbitration Laws continually have courts reluctant to interfere with the process. In essence, because the parties negotiated it and signed it, they are all bound by it.

In terms of blunders, for the NFLPA, this ranks right up there with Conan O’Brien’s team not making sure he had an 11:30 timeslot guarantee with NBC.

So now what happens?

It is April. Brady and the Patriots do not take the field for a game that counts until September 11, 2016. That is plenty of time to appeal to a full appeals court. As for Brady’s odds? Who knows? What I do know is that come time for the next CBA negotiating sessions you can expect the NFLPA to push hard for third party independent arbitration, and you can expect the NFL to require some significant concessions in exchange.