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The NFL Lets the Air Out of Fair Procedures: District Court’s “Deflategate” Review Reveals An Unfair Process, Not Brady’s Innocence


When United States District Court Judge Richard M. Berman handed down his ruling in the National Football League Management Council v. National Football League Players’ Association “Deflategate” case almost two weeks ago, some were quick to declare the upshot: Tom Brady wins again – Tom Brady is innocent.

But in deciding to set aside the NFL’s discipline decision (a 4-game suspension) against the New England Patriots’ star quarterback for involvement in or knowledge of deflating footballs below the low-end of the regulated range, obstructing the league’s investigation and/or conduct detrimental to the game, the U.S. District Court was not determining  and did not determine whether or not Brady actually participated in a football deflating scheme or had knowledge of one. The Court was asked to decide whether the initial discipline determination and, more precisely, NFL Commissioner Roger Goodell’s confirmation of that discipline as an arbitrator should be upheld under U.S. federal abitration statutes and associated precedent cases, and the legal precedents associated with the NFL’s discipline justice system.

The Court ruled that the League’s arbitration decision had to be set aside even though the legal default mode is to respect the discretion of the original decisionmaker and remain “hands off”.

It came to that conclusion not because it reevaluated all the evidence and decided that Brady was in fact innocent or because there was no evidence to conclude he had any involvement, but because the NFL procedural approach to disciplining a gridiron demigod was fundamentally unfair in multiple dimensions.


The Court found nothing in the Collective Bargaining Agreement, no policy, no parallel policy for some other kind of problematic conduct or other relevant source of authority notified Brady that the behaviour he ostensibly engaged in, “being generally aware of the inappropriate activities of [the equipment staff] involving the release of air from Patriot game balls“.

In other words, nothing existed in the universe of NFL governance to properly tell Brady he, as a player, was breaking  any rule by being “generally aware of inapporiate activities…”. By analogy, if they don’t put a law on the books to tell you that holding your cell phone while driving is banned, how can they say you knew it was illegal and punish you for it?


Judge Berman found that

Brady had no notice that he could receive a four-game suspension for “general awareness of ball deflation by others or participation in any scheme to deflate footballs, and non-cooperation of the ensuing investigation. Brady also had no notice that his discipline would be the equivalent of the discipline imposed upon a player who used performance-enhancing drugs.

The NFL’s regulatory framework expressed no specific punishments for the Brady’s impugned behaviour. Accordingly, Brady had no way to take notice of the potential range of punishment for his purported participation in Deflategate or attempts to obstruct NFL justice. Arguing that he should have been on notice by consulting the specific policies and punishments for using performance enhancing drugs was misplaced because the anti-doping rules were in a class of their own rather than for general direction or broad application, and because the nature of the conduct covered by the League’s anti-doping rules was not comparable or had not been shown to be comparable to the Brady’s alleged conduct.

The Court ruled that the conventional law of the NFL football industry is that professional football players are entitled to advance notice about what conduct is prohibited and the potential punishements. In the Deflategate proceedings, Brady never received that notice. At most, he had notice that he might be fined for equipment-related violations under policies directed at players.


Jeff Pash, the NFL’s chief in-house lawyer and Executive Vice-President co-led the investigation. He reviewed the report and provided written comments and “edits” to the external law firm responsible for the final report on which the NFL’s discipline decision was ostensibly based.

As a matter of federal arbitration law and football industry precedent, Commissioner Goodell was obliged to recognize the following:

– a “fundamentally fair hearing requires that the parties be permitted to present evidence and cross-examine adverse witnesses”;

– “an arbitrator must give each of the parties to the dispute an adequate opportunity to present its evidence and argument”;

– “players must be afforded the opportunity to confront their investigators” and an arbitrator “should compel the witnesses necessary for the hearing to be fair”;

– limiting the availability of witnesses knowledgeable about an important circumstance, according to the NFL’s willingness may create the risk of providing an incomplete picture of that situation; and

– if an arbitrator is going to deny a party the opportunity to present testimony because s/he asserts that testimony is redundant to other evidence, s/he must specify the ways in which it is repetitious.

In Judge Berman’s view, logic led to the inescapable conclusion that Mr. Pash was a valuable witness who should have been compelled to testify in the discipline proceedings.

Pash was a “very senior” NFL executive who, and the NFL did not deny this, provided important input into the foundational report on which the NFL determined Brady’s discipline case. Pash was “in the best position” to provide “valuable insight” and relevant evidence into how the investigation unfolded and its results, the drafting and content of the final report, and the extent of League involvement in producing a supposed “independent” report.

The Court was alive to prior cases in which an NFL Vice President of Security and Commissioner Goodell himself were compelled to testify. More centrally, it also observed that Goodell’s conclusion that any testimony Pash might give would be repetitive to other evidence was unsupported in the absence of details on how and why he arrived at that.

In the end, the Court  determined that denying Brady access to Pash’s testimony violated federal legislation and “was fundamentally unfair”.


In Canadian criminal law, an accused person has a right to know about relevant information in the prosecution’s file; the prosecuting authority has a duty, with limited exceptions, to disclose that information. That obligation to disclose and/or produce evidence is not limited by the credibility or reliability of the evidence, the prosecutor’s plans for use of the evidence at trial, or whether the evidence tends to show that the accused person is innocent or guilty. In addition, “all statements obtained from persons who have provided relevant information to the authorities should be produced, even if they are not proposed as Crown witnesses.”

In the District Court’s review of the Brady discipline proceedings, it identified a kindred obligation, even when legislation fails to create that duty, in the sports discipline arbitration process to ensure “that relevant documentary evidence in the hands of one party is fully and timely made available to the other party”, a “simple” obligation which if it is not met “would constitute a violation of [federal arbitration legislation], where a party can show prejudice [i.e. injury to legal rights].”

In the NFL discipline arbitration, Commissioner Goodell denied Brady’s request for various documents including “notes of witness interviews”. Examining that decision, Judge Berman indicated that

– “the interview notes were, at the very least, the basis” for the final report on which the NFL’s discipline depended and Brady’s legal rights to advance his case were damaged,

–  Brady lost his “opportunity to examine and challenge the materials that may have led to his suspension”,

– the NFL prevented Brady from accessing the information which probably made it easier for the opposition to cross-examine him effectively, and

– Brady’s legal position in fighting the case was damaged even more because the law firm responsible for the supposed “independent” investigation switched hats and became the League’s lawyer against Brady at the final arbitration, with apparent access to all the background and unedited information it gathered during the investigative phase.

In the Court’s view, the NFL’s refusal to disclose investigative file material was like its denial of access to Pash as a witness: fundamentally unfair.


At the District Court, Brady and the NFLPA also asserted that Goodell improperly delegated his authority, made conclusions unsupported by the evidence as found in the final report, and prejudged the case and could not deliver an unbiased decision.

Judge Berman did not even address these additional grounds for setting aside the League’s suspension in view of the failures of fairness he already found. Still, when one considers the NFL’s approach to procedural fairness as reflected in the details of the Deflategate proceedings, it is not a stretch to suggest that the NFL’s discipline decision would have been infirm on those grounds as well.

But in the face the District Court’s negative assessment of the NFL’s approach to fairness in this notorious case, one still has to wonder why the NFL seems resistant to erring on the side of caution by providing more access to potentially relevant material in the investigative file and fuller access to witnesses when their importance really is not debatable.

Why not steer clear of partiality and avoid the appearance of bias by consistently going an extra mile to keep investigative, prosecutorial and decisionmaking functions functionally and optically separate and having more exacting standards that keep the League more disconnected from “independent” investigations?

More broadly and with an eye to creating a more robust system of NFL justice in the future, it could be the time for the the NFL (and other professional sports leagues) to create a more comprehensive code of discipline (maybe like Canada’s Criminal Code) which details a wider scope of improper conduct and expressly states the values and principles that guide the league in imposing punishments and particularizes the range of punishments for individual offences.

Arguably, if the NFL is prepared to act in an effort to renew its justice system in these ways, it will be better positioned to avoid the dismantling of its discipline decisions on reviews and appeals.

If it continues to do things the same way, it has no choice but to expect the same results.