OPINION: Brooklyn Law School professor Jodi Balsam on deflategate and its expanding impact
Balsam Explores How a Decision from the Second Circuit May Signal a Turning Point in Labor-Management Relations
As the sports world awaits a decision from the U.S. Court of Appeals for the Second Circuit on whether NFL quarterback Tom Brady will serve a four-game suspension for tampering with footballs, a bigger issue looms for the integrity of labor arbitration everywhere. What the Second Circuit must decide is not whether Brady is a cheater, but whether the federal district court misapplied the law requiring deference to the arbitrator of a labor-management dispute.
The Second Circuit must review de novo (anew) whether the Labor Management Relations Act requires the courts to defer to Commissioner Roger Goodell in his capacity as arbitrator of the Deflategate disciplinary proceedings. The legal standard requires only that Goodell’s decision was a “plausible interpretation” of the NFL’s Collective Bargaining Agreement (CBA), which empowers the commissioner to impose discipline for “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” Keep in mind that the players’ union co-authored and signed onto the CBA, including the provision which appoints the commissioner as arbitrator of any disciplinary appeal.
Thus, to reinstate the Brady suspension, the Second Circuit does not have to find that Goodell’s interpretation of the Deflategate events was correct, or even sensible, but merely plausible. So put aside the disputed science over what might have caused the footballs to deflate and the contested evidence over Brady’s knowledge and involvement. Goodell is entitled to broad discretion to apply the “conduct detrimental” standard to Brady’s conduct.
Goodell could find himself overruled, however, for any legal deficiencies in the arbitral process. Brady alleges at least two such deficiencies: (1) he received inadequate notice that deflating game balls violated league rules and could lead to suspension, and (2) he was improperly denied access to evidence and testimony necessary to his defense. But again, deference to the CBA and to the parties’ designated arbitrator ought to provide the commissioner wide latitude to interpret “conduct detrimental” and to manage the hearing process.
The Second Circuit is expected to decide the case by summer 2016. A decision in Brady’s favor would represent a significant turning point in the jurisprudence of labor-management relations, and a challenge to federal policy that promotes private freedom of contract and private resolution of disputes in the organized labor setting.
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Jodi S. Balsam is associate professor of clinical law and director of Civil Externship Programs at Brooklyn Law School. Her scholarly and teaching interests include sports law, professional responsibility, civil procedure and judicial administration. She was previously a faculty member at New York Law School, where she taught legal practice, sports law and the Judicial Externship Seminar, and at New York University School of Law, where she taught in the Lawyering Program.
Professor Balsam also designed and taught an innovative class in sports contracts and negotiation in NYU’s Sports Business Graduate Degree Program. Before joining academia, Balsam was the National Football League’s counsel for operations and litigation, where she managed litigation in all areas of law, oversaw a variety of policy and operational matters, negotiated contracts for league-special events and administered the league’s internal dispute resolution processes and compliance program. She began her practice career as a litigation attorney with Simpson Thacher & Bartlett LLP, representing a wide range of clients in antitrust matters and complex litigation.
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