Professor Marc Greenbaum, labor law expert, on the next round of the Deflategate saga

As Tom Brady and the National Football League Players Association (NFLPA) face off against the NFL in federal court regarding the Deflategate controversy, we asked labor law expert Professor Marc Greenbaum to share his thoughts on the next phase of the saga.

1. Was it fair for the NFL Commissioner to serve as a hearing officer?

The facts of this case undermine any potential claim that the Commissioner’s review of the decision was fair. Having publicly endorsed the Wells Report, the Commissioner has a vested interest in following that report’s conclusions, without regard to contrary evidence presented by the NFLPA. Anyone who thought the Commissioner’s decision would fail to follow the Wells Report is likely to be a prospective purchaser of a bridge in Brooklyn.

The Commissioner’s claimed neutrality is compromised by reports that certain league owners lobbied him to uphold the original discipline. One of the owners reported to have done so, Jim Irsay, has his own dirty laundry. Such lobbying of a claimed neutral is an impermissible ex parte contact, a fact made more troubling by the owner's role as the Commissioner's employer. One would think that some judicial inquiry into these potential ex parte contacts is warranted.       

2.   What is the scope of federal court review of Commissioner Goodell’s decision?         

Various commentators have suggested that courts will use the traditional standards applicable to judicial review of labor arbitration awards. Under those traditional standards the court would not review the substance of Commissioner Goodell’s decision; instead the court would seek to determine whether the Commissioner exceeded his jurisdiction or should have been disqualified due to potential bias.

But it’s not clear that this case should be governed by traditional standards. The Commissioner's decision is not an “arbitration award” as that term is understood in labor relations in most of the civilized world. The Commissioner is not a true neutral in these matters, whatever contrary claims may be advanced by the NFL. The only reason that his role as a hearing officer is arguably legitimate is that the NFLPA agreed to this procedure in the current collective bargaining agreement.

The Commissioner’s unique role could impact the judicial response in one of two ways.  It could result in more stringent judicial review of his decision than is traditional, or conversely, the Union's signed agreement regarding the Commissioner's role could be viewed as waiving its objections. The case takes us into Star Trek territory, that is, where virtually no one has gone before.     

3.  Did the NFL take unfair advantage in its attempt to obtain judicial confirmation of the Commissioner’s decision in the Manhattan court?

Any good lawyer, of course, seeks to have a dispute resolved in a favorable forum.  Whatever may be the outlook of the federal district court in Manhattan, experience suggests it is likely to be a more favorable forum for the NFL than is the federal district court in Minnesota. The NFL was able to defeat the Union’s attempt to have the case heard in Minnesota because it presumably knew when the report would be released and may well have known its contents in advance. The NFL’s leg up in its effort to secure the most favorable forum was not available to the Union. This is another example of the fundamental imbalance of the procedure used by the NFL.

4. Are there professional responsibility issues raised by the NFL’s conduct?

The NFLPA has alleged that the NFL’s general counsel helped edit the final version of the Wells Report. It is likely that in-house counsel participated in the hearing before the Commissioner. If in-house counsel also assisted in the preparation of the Commissioner’s final decision, this would seem to raise professional responsibility issues. One could question the propriety of having members of the NFL’s in-house counsel’s office working on the investigatory and hearing phases as well as the preparation of the Commissioner’s final decision on the appeal.

5.  What is your take on the issues surrounding Tom Brady’s cell phone?

The decision to destroy, or otherwise dispose of Brady's cell phone, just prior to his interview with Ted Wells was foolish. It violated a fundamental rule that one should not say or do anything that one would be reluctant to read about in the newspaper. More critically, on its face, Brady's refusal to turn over his cell phone was based on principle and raised credible issues about the appropriateness of the NFL seeking to invade the privacy of its employee. The opportunity for that discussion was lost along with the cell phone, grabbing what could have been a moral victory and placing it squarely within the jaws of defeat.