Judge Richard Berman of the Southern District Court of New York dealt another blow to NFL Commissioner Roger Goodell’s power to discipline players this week when he tossed out Tom Brady’s four-game suspension.
The judge’s ruling adds another layer to a lengthy history of player discipline that began with baseball Commissioner Kenesaw Mountain Landis’ decision to ban eight players on the Chicago White Sox from playing again in organized baseball. Landis acted despite a jury decision that found the players not guilty of essentially running a confidence game on a fan when they agreed to purposely lose games to the Cincinnati Reds in the 1919 World Series for a significant payoff from gamblers. A former judge, Landis ruled baseball for over two decades much as he had his federal courtroom. He often used the “best interests of baseball” clause as support for his decisions.
A succession of baseball commissioners including Bowie Kuhn also successfully used the “best interests of baseball” to support their decisions and various courts upheld those efforts. The imperial commissioners continued to rule baseball, and the other sports adopted a similar structure.
Over time, however, arbitration was introduced as part of the collective bargaining process partly to determine whether commissioners exceeded their strong powers in making disciplinary decisions. The commissioners started to lose some or all of their decisions in front of arbitrators.
For instance, NBA Commissioner David Stern’s decision to issue a lengthy suspension to Latrell Sprewell for choking his coach was reduced by arbitrator John Feerick. Subsequently, suspensions rendered after players on the Indiana Pacers and Detroit Pistons fought each other in the “Malice at the Palace” were reduced during arbitration.
In the Brady case, Berman determined that Goodell failed to provide adequate notice that Brady’s behavior could prompt a four-game suspension. Further, Brady and his legal team were deprived of an opportunity to examine NFL Executive Vice President and General Counsel Jeff Pash. Finally, Brady was deprived of equal access to the investigative files used to produce the “independent” Wells Report that Goodell relied upon in support of his suspension. Berman noted that the decision to rely on the punishment scheme used by the league for the use of performance enhancing drugs had nothing “to do with Brady’s conduct and/or discipline” in a case related to the proper level of inflation of footballs.
Berman’s decision is narrowly drawn, and he did not rule on whether the commissioner’s actions showed that he was “evidently partial.” Coming on the heals of reversals in the Bountygate episode involving the New Orleans Saints and the Ray Rice/Adrian Peterson/Greg Hardy disciplinary rulings, Goodell’s powers have been strongly undercut.
So, many fans of the New England Patriots are happy that Tom Brady will start the upcoming NFL season without enduring a suspension while fans of the Steelers, Bills, Jaguars and Cowboys are disappointed.
Fantasy football team owners who already completed drafts are either chirping their ecstasy at the news that Brady will play because they choose him as a bargain or agonizing that the lack of certainty about his status caused them to pass over the star quarterback.
So, in these two instances, there are winners and losers. But this fifth loss by Roger Goodell is the most stunning of all and, unlike the fantasy leagues, comes in the real world affairs of a league with a seriously wounded leader.
Berman nearly begged the NFL and Brady’s camp to settle this case instead of having to deliver this ruling. The NFL and Brady’s side failed to make a deal. The league can appeal, but it might be too late to save the tarnished image of the disciplinarian-in-chief.
The initial fallout is that the commissioner will not attend the season opener next Thursday night between the Patriots and the Steelers in Foxborough. His decision to miss the opener for the first time since 2006 shows the degree to which this match between these two icons of the industry hurt the game. Brady and Goodell refused to make eye contact the last time they appeared before Berman. That enmity might well date back to Brady’s decision to be the lead plaintiff in the class action lawsuit filed against the NFL over labor practices on March 11, 2011.
At the moment Brady is standing tall again and the commissioner and the reputation of his office are on the sideline as the most lucrative sport in this country launches another season next week.
