Deflategate has never been about footballs–so what, exactly, is the NFL up to?

By H Brian Holland
Texas A&M University

For the NFL, the second Deflategate hearing this week didn’t go any better than the first. In question after question, Judge Richard Berman pressed the NFL on the specifics of its investigation, the conclusions drawn by NFL commissioner Goodell and even the relative severity of the punishment imposed.

At times, it seemed that the entire disciplinary system of the NFL was under scrutiny. And Judge Berman was clearly skeptical. Now he’s ordered Roger Goodell and New England Patriots quarterback Tom Brady to appear in court on August 31.

It’s the latest twist in the Deflategate saga – which started as an investigation into whether or not Brady instigated a scheme to deflate footballs prior to January’s AFC Championship Game.

Since then, it’s evolved into something much bigger. And at stake is something quite universal, an issue that could relate to any employee of any organization.

The question is whether or not Goodell, in asserting his supposed right to punish at will – often based on questionable evidence and seemingly arbitrary procedures – violated the basic right to fundamental fairness claimed by every worker, including famous football players.

All hail King Roger!

When it comes to doling out punishment, the league’s collective bargaining agreement (CBA) with the players union is clear: NFL commissioner Goodell is not only judge, jury and executioner, but also lead investigator, prosecutor and the Court of Appeals.

Call it a kangaroo court or a dictatorship; it doesn’t matter. This is exactly what the NFL Players Association (NFLPA) agreed to when it negotiated the CBA in 2011. The union essentially made a trade, giving Goodell nearly unlimited power to discipline players, in exchange for a greater percentage of the revenue stream.

Controlling the process from beginning to end, Goodell ultimately found – and then affirmed his own finding, when he served as the arbitrator for the appeal in June – that Tom Brady “engaged in conduct detrimental to the integrity of, and public confidence in, the game of professional football.” The penalty was harsh: suspended four games without pay.

Even when Brady and the NFLPA appealed the ruling to federal court in July, Goodell and the NFL were quick on their feet. They beat the union to the courthouse, securing a favorable venue and – so it seemed – a quick dismissal of any challenge to the Commissioner’s power.

And, indeed, the NFL’s argument was simple: the federal courts are limited to the most narrow review of arbitration decisions and must uphold the penalty imposed “even if the Court were ‘convinced’ that the arbitrator (in this case, Goodell) ‘committed serious error.’” The federal courts, the NFL argued, are “not authorized to review the arbitrator’s decision on the merits,” even if “the decision rests on factual errors.”

So until recently, Roger Goodell and the NFL must have thought that the whole Deflategate mess would be cleaned up and tucked away without much fuss. Yes, they were headed to federal court, but it was just a formality. A rubber stamp for the Commissioner.

Welcome to the wonderful world of lawyers and business executives, where real power allows you to insulate yourself from outside scrutiny. With well-crafted contracts and disciplinary provisions, you can circumvent the courts altogether.

A power play for the NFL

This is really the most important point: Deflategate has nothing to do with football. And it certainly has nothing to do with “the integrity of the game.”

In a sense, it never did. Instead, Deflategate has always been about power.

Yes, fans hate to hear this. They want to debate right and wrong, guilt and innocence, crime and punishment. They want to argue about Tom Brady’s involvement and his legacy. They want to talk PSI and the Ideal Gas Law. Some want to cast the Jets or Colts as the jealous underlings who started this whole thing, while others want to finally bring Patriots coach Bill “Beli-cheat” to justice.

But none of that matters. Not to Roger Goodell and the NFL.

What matters is preserving a very lucrative business model, one that requires total and complete control over your product, including raw materials and labor (in the somewhat twisted world of the NFL, players fall into both categories).

And that’s where the CBA comes in. In general, collective bargaining agreements are private agreements that insulate a business from judicial review in all but the most egregious circumstances.

So why has Federal Judge Richard Berman forced the NFL to defend its fact-finding procedures and conclusions – exactly what the NFL assumed it could avoid?

It probably surprised NFL lawyers that federal judge Richard Berman’s line of questioning highlighted the fairness of the process, rather than the intricacies of the collective bargaining agreement. | Darren Ornitz/Reuters

The NFL’s lawyers were clearly thrown off their game. Where was this coming from? After all, certainly Berman must have realized that he had little to no role to play. Certainly he must have understood that the rights of the players had been bargained away. Certainly he must have understood that, in essence, the facts did not matter.

Rather, all that mattered was that Roger Goodell had found Tom Brady guilty. Case closed.

The NFL’s attorney actually said as much during last week’s hearing, when he repeatedly swatted away Judge Berman’s questions by telling him that the only judgment that mattered was that of the commissioner.

Chinks in the NFL’s argument

In a sense, it’s the height of hubris on the NFL’s part.

Imagine standing before a federal judge, essentially telling him that you have no need to answer his question because your client’s opinion is the only one that matters. Imagine standing before a federal judge who is clearly telegraphing his concerns about the basic fairness of the underlying process and conclusions, and telling that judge that he has no business asking those questions. Imagine standing in front of a federal judge, telling him that he has no role to play here.

There is no doubt that arbitration decisions are granted great deference when challenged in court, but they are not entirely beyond reproach.

While some of the NFLPA’s arguments rehash procedural issues that are unlikely to benefit Brady, other arguments are more compelling. For instance, the NFLPA raises significant questions as to whether the discipline imposed on Tom Brady is “fair and consistent” or “arbitrary and capricious.” Likewise, the NFLPA raises an interesting argument as to whether Brady received adequate notice, as required under the “law of the shop.”

These are not new or novel arguments, but rather standards applied in prior labor cases, including cases involving the NFL.

NFLPA executive director DeMaurice Smith arrives for the second Deflategate hearing on August 19. | Brendan McDermid/Reuters

The NFL’s apparent legal tactic – repeatedly telling Judge Berman that he has no role to play – is not only hubris, it’s foolhardy.

It begs the question that has been dogging many since the beginning of this entire debacle. What, exactly, is the NFL up to?

Why take something that should’ve been solved by a memo and turn it in to a public spectacle? The NFL had been tipped off prior to the AFC Championship game, so why set up a sting operation rather than simply warning the Patriots? Why go after Brady, one of the league’s most well-known and popular players? Why go after the Patriots, whose owner is one of the more powerful in the league? Why impose such a drastic penalty, almost begging for an appeal? Why take such an extreme position in front of a federal judge, implicitly challenging his authority not only to review the Commissioner’s findings but to even to ask questions about the facts?

The answer, I think, is rather simple. Take on the game’s biggest player, the league’s most successful team and even a federal judge. Cut them down to size. Make clear that each is less powerful than the league itself.

But what if you lose? Perhaps the NFL hasn’t even considered this possibility. Of course, in the law, it’s less about losing and more about how or why you lose.

If Judge Berman rules that Brady simply lacked the required notice of his penalty, this really isn’t much of a loss for the NFL at all. As a matter of procedure, it can be corrected going forward, and as a matter of public relations, it looks like Brady is getting off on a technicality.

If, on the other hand, Judge Berman rules that the policies and procedures utilized by the NFL were neither fair nor consistent, but in fact arbitrary and capricious, then the loss could be devastating.

The NFL’s position has always been that its procedures and punishments are unassailable. If Judge Berman were to find otherwise, that powerful mythology would quite suddenly evaporate. The effect on public perception might be even worse. Tom Brady would go from being the man who got off on a technicality, to the victim of an injustice.

Of course, were Brady and the NFLPA to prevail, it would likely be on narrow grounds that correct a particular injustice but preserve the status quo. But what if Judge Berman joins Judge David S Doty (who overturned Goodell’s suspension of Adrian Peterson) and retired Judge Barbara Jones (who overturned Goodell’s suspension of Ray Rice) in slapping down the NFL?

Losing a case against a wife beater or a child abuser is one thing. It makes you look good in the public eye. A blitzkrieg based on underinflated footballs – well, that’s something altogether different.

And a loss in this case may well spell the end for Roger Goodell.


H Brian Holland is Professor of Law at Texas A&M University

This article was originally published on The Conversation.

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