I commented on Tom Brady's balls back in January. Since then, as you know, Roger Goodell commissioned Ted Wells from the law firm Paul Weiss to perform an "independent" investigation into the circumstances giving rise to the tenderness of Brady's balls in the AFC Championship Game. The report concluded that "it is more probable than not that Brady was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls." Based on this vague conclusion, testimony from various witnesses, and the fact that Brady destroyed an old cell phone that potentially had relevant texts or emails, Goodell (acting as a neutral arbitrator) suspended Brady for four games. Brady appealed to the Southern District of New York. Hilarity ensued.
The case was assigned to Judge Richard Berman, a 70-some-odd year old Clinton appointee with 17 years of experience on the bench. He has degrees from Cornell and NYU School of Law. He was an advisor to Jacob Javitz. He was the general counsel for Warner Cable Company. He is no stranger to shitshow trials of the celebrity and political variety. He assumed senior status in 2012, presumably to get a lighter caseload and enjoy more free time in his old age. I don't think he wanted anything to do with a labor dispute involving balls and their air pressure, and Tom Brady's "general awareness" of said air pressure.
His opinion bears this out, undressing Goodell and the NFL for three primary reasons.
First, Brady didn't have "notice" that tampering with balls could lead to a suspension. Notice is a term of art--if a person has "notice" of a fact or condition, then they actually know of it, or received some notification of it (usually in the form of a document), or had reason to know about it. NFL players receive notice of various rules and conditions on their employment via the CBA and the NFL Player Policy handbook. The Player Policy handbook says that tampering with equipment results in a fine of $5,512 for the first offense and does not say that suspension is a possibility. The NFL applied the language of the Competitive Integrity Policy to Brady, but players do not receive this document--it's only given to "Chief Executives, Club Presidents, General Managers, and Head Coaches." Thus Brady didn't have notice of the possibility of a suspension, so the league can't suspend him. Goodell tried to analogize Brady's four game suspension to the PED rules, but Judge Berman scoffed at that:
The Court is unable to perceive "notice" of discipline, or any comparability between a violation of the Steroid Policy and a "general awareness" of the inappropriate activities of others, or even involvement in a scheme by others to deflate game balls on January 18, 2015, and non-cooperation in a football deflation investigation.
[Goodell's punishment] offers no scientific, empirical, or historical evidence of any comparability between Brady's alleged offense and steroid use. Often, steroid use has to do with critical issues of health, injury, addiction, and peer pressure, among other factors. See Steroid Policy at 1-2 (listing several factors related to the use of"Prohibited Substances," including "a number of physiological, psychological, orthopedic, reproductive, and other serious health problems, [such as] heart disease, liver cancer, musculoskeletal growth defects, strokes, and infertility"). None of these factors is (remotely) present here.
To put it more succinctly:
This line of reasoning didn't go over well with sports talk radio hosts. They said stuff like "You don't ever like to see someone get off on a technicality." Well. What some people call "technicalities," lawyers call "the law." In this instance, the particular "technicality" at issue is the concept of due process. When you hear people talk about how great America is because of our freedoms, they're talking in part about due process--freedom from tyranny. Judge Berman explained it thus: "While '[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause ... there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice." Simply put, a court can't take someone's job away for doing something they didn't know could result in termination.
Talk radio also opined that Brady has tons of money and he won't miss four games of pay. That's just nuts. I live very much within my means. If I lost my job and had to take a 25% pay cut I could do it. But I'd be pissed. And who knows what side ventures or investments Brady has going on? Maybe he owns a Truffula Tree farm and has a balloon payment coming due on it, or maybe he planned on buying a controlling interest in the company that makes Uggs. Doesn't matter. Anyone would be pissed if you took a quarter of their pay. More importantly, Brady would love one more ring, and the Pats' best shot at winning the Super Bowl comes with 16 games of Tom Brady under center.
Second, Goodell prohibited Brady from cross-examining Jeff Pash at his arbitration hearing, essentially turning the entire proceeding into a clown show crossed with a kangaroo court. It's wickedly crooked.
Pash is the NFL's general counsel, their chief lawyer. Pash was also the "co-lead counsel" for the allegedly "independent" investigation into Brady's balls with Wells and Paul Weiss. He even reviewed and revised the final draft of the Wells Report before it was published. So the NFL's "independent" investigation was led and written by their own internal lawyer! Then, at the arbitration, Paul Weiss represented the NFL! So the "independent" investigators worked with the league to generate evidence against Brady, then worked for the league to adjudicate against Brady! This is a surprisingly and obviously bad strategy and I'm surprised Paul Weiss went along with it. Oh ... and Roger Goodell, the guy who hired Wells and for whom Pash works, served as the arbitrator. Simply put, the deck was stacked against Brady, and he wasn't even allowed to cross-examine one of the primary people who built the case against him. You can't do that in America.
Goodell let Brady cross-examine Wells, and concluded that Pash's testimony would be "cumulative" (legalese for "redundant") in light of Wells's testimony, noting that Wells testified that Pash's edits to the Wells Report "couldn't have been that big a deal." Judge Berman disagreed:
[T]he NFL fairly cannot suggest, without more than the testimony of the NFL's retained counsel, that the edits from Mr. Pash were not significant or that his testimony would have been "cumulative." Pl.'s Mem. Supp. II. Mr. Wells acknowledged that he did not know the content of Mr. Pash' s pre-release edits, and thus there was simply "no reasonable basis for the arbitration panel to determine that ... [the] omitted testimony would be cumulative."
In other words, you can't say that Pash's testimony is redundant just because they guy you're paying $1250 an hour to represent you says it's redundant.
Third, Goodell did not give Brady's lawyers access to the investigative files and witness interview notes that were generated during the Pash-Wells investigation. This prejudiced Brady because there might have been a "smoking gun," or at least a helpful quote or two, to benefit his case. Judge Berman added:
Compounding Brady's prejudice is the fact that, as noted, Paul, Weiss acted as both alleged "independent" counsel during the Investigation and also (perhaps inconsistently) as retained counsel to the NFL during the arbitration. Paul, Weiss uniquely was able to retain access to investigative files and interview notes which it had developed; was able to use them in direct and cross-examinations of Brady and other arbitration witnesses; share them with NFL officials during the arbitral proceedings; and, at the same time, withhold them from Brady.
Taken together, these three issues alone (and Brady had three other, more complicated gripes that the judge didn't bother to address) show that Goodell isn't qualified to run a bar and grille, let alone a professional sports league. Let me spin out a hypothetical for you, with the hopes of maybe making all of the foregoing a little bit easier to relate to.
Imagine that you wait tables at a restaurant called Chotchkie's, a bar and grille sort of like TGI Friday's. It's a franchised chain, with each restaurant owned by different people and a headquarters somewhere in NYC. Headquarters sets some rules for how each franchise must operate and provides various employee handbooks. The waiter's handbook says, among other things, that anyone who knowingly serves contaminated, expired, or otherwise unsafe food can be suspended for 3 months or more, or even fired. The waiter's handbook also says that you must wear between 12 and 13 pieces of flair on your uniform. Failure to do so will result in a reprimand and, if it happens more than once, fines of up to $50 a night at the manager's discretion. That said, flair is really important--it's about fun. It's why people come to Chotchkie's.
One night you're waiting tables when halfway through the evening the manager comes up and accuses you of wearing only 11 pieces of flair. You deny it--you had 13 pieces when you left your house and you're sure you still have 13 pieces now. A quick recount confirms that you only have 11. The manager reprimands you. So you add on two more pieces and finish the second half of the night, waiting just as many tables as you did in the first half. Life goes on.
A few days later, you learn that one of your co-workers sent a letter to HQ stating that you only wore 11 pieces of flair in the first half of one of your shifts. The CEO is incensed and commands an investigation. Surveillance footage from the kitchen and locker area shows that an unidentified person went into your locker, but it isn't clear if he took any flair, or even if he had time to take any flair. Undaunted, the CEO hires one of the fanciest law firms in the country and has his GC work with them to prove that you knowingly worked the first half of your shift with an under-flaired uniform. Experts in flair are retained, dozens of co-workers and restaurant patrons are interviewed, and millions of dollars are spent. The investigation concludes exactly what the CEO asked it to prove: you knew you let the flair out of your uniform.
After the investigation is complete, a report summarizing your flair malfeasance is issued, stating that it is more likely than not that you were generally aware of your lack of flair. A hearing is held, over which the CEO presides. You are not allowed to cross-examine the GC or review any of the documents that were generated during the investigation or that were relied on to create the report. The CEO suspends you without pay for 3 months, analogizing the situation to serving unsafe food ... despite the fact that you didn't serve unsafe food and the level of punishment for your lack of flair is expressly addressed in your handbook.
How pissed off would you be? If you knew that low flair levels could result in a 3 month suspension, you would've been super diligent about maintaining your flair. So even if you hate wearing flair (which was alleged in the report) and purposely took off two pieces of flair so that you would be more comfortable, the worst you thought could happen was a $50 fine, per the handbook. And now this suspension bullshit? You'd fight it, wouldn't you? Even if you really did take off a little flair at the start of your shift?
Can you imagine the CEO of a chain of bar and grilles doing something this asinine? Of course not. No one would put someone this moronic in charge of a lemonade stand, let alone a national franchise. Then how in the hell did a guy who isn't capable of running Chotchkie's wind up running the most successful sport in America?