The NFL and Commissioner Roger Goodell will win their “Deflategate” legal case against Tom Brady and in fact, they’ll win by a slam dunk — all because of something called “Article 46,” a provision of the Collective Bargaining Agreement between the National Football League and the NFL Players Association the grants the commissioner virtually unlimited authority to Goodell to punish players for “conduct detrimental” to the game of football.
That, anyway, is the argument put forth by the NFL in a federal court — and restated in a controversial article Friday by ESPN Legal Analyst Lester Munson, who also said that under the law, decisions by arbitrators are final, and judges must not alter those decisions.
Federal Judge Richard Berman, who is presiding over the Deflategate case, is bound by those rules, Munson says.
“The strength of the NFL position in the litigation is indisputable,” Munson wrote. “It is based on powerful legal precedents that severely limit a federal judge’s review of an arbitration decision.”
But is Munson correct? Will the NFL win the Deflategate case as easily as he, and other supporters of Goodell’s four-game suspension of Brady, believe?
Not only are legal experts who disagree easy to find, they point to numerous legal precedents in which judges have tossed out decisions made by arbitrators.
“Judge Berman has the authority to vacate the award if it fails to ‘draw its essence’ from the CBA, such that the arbitrator imposed ‘his own brand of industrial justice,’ ” wrote Massachusetts attorney James M. Lynch, in his own independent analysis of the Deflategate case.
Lynch cites a United States Supreme Court decision which held that the exact wording of a CBA contract is not the only thing that must govern arbitrators’ decisions. Instead, the Supreme Court held in a 1960 case, “industrial common law – the practices of the industry and the shop – is equally a part of (a) collective bargaining agreement although not expressed in it.”
In other words, even though Article 46 gives Goodell broad power to impose player discipline, there’s nothing in the CBA that gives him absolute power. And if he violates the limits of his power by going beyond “the practices of the industry and the shop,” a judge can, and probably will, reverse his decision.
“There are narrow grounds for overturning arbitration, but this case appears to meet plenty of them,” wrote Washington Post columnist Sally Jenkins this week.
“The judge can throw it out if he finds Brady’s rights were prejudiced by corruption, fraud or misconduct. Or if he finds Goodell was evidently partial or was arbitrary and capricious. Or if he finds that Brady wasn’t given proper notice of what he was accused of, so he could mount a proper defense,” Jenkins wrote.
Those arguments are exactly the same as those made by the NFLPA, representing Tom Brady, when it argued the Deflategate case in front of Judge Berman last Wednesday.
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