On Sports and Life

Through all the many months that the NFL’s Deflategate saga dragged on and on and on, there was a decided regional bias in opinions about the matter. Here in New England, where Patriots quarterback Tom Brady is now preparing to sit for the first four games of the upcoming season, most fans firmly believe that their square-jawed hero and his team are the innocent victims of a vengeful commissioner Roger Goodell. Between innings at last Friday night’s Red Sox game at Fenway Park, a few folks began a repetitive cry of “Free Tom Brady!” The chant was quickly taken up by several thousand of their fellow New Englanders. Outside of the northeastern corner of the country, the vast majority of fans hold a starkly different view. From Seattle to Miami and from San Diego to Buffalo, the faithful followers of thirty-one other franchises remain convinced that under the regime of head coach Bill Belichick the Patriots are serial cheaters who gleefully bend rules to the breaking point in a constant quest for a competitive edge.

Lost in the passion and fervor from both sides is that the core issue in the interminable legal proceedings that followed Goodell’s original decision to suspend Brady, fine the Patriots $1 million and take away a pair of draft picks, was not whether the footballs used in the 2015 AFC Championship Game had been subjected to tampering. Rather the question was whether the NFL’s process for imposing the sanctions was fair. Hours of arguments and mountains of motions centered not on the Ideal Gas Law but on Article 46 of the collective bargaining agreement between the league and the NFL Players Association.

That section outlines a player’s appeal rights when penalized by the league, and stipulates that an appeal can be heard by either the commissioner or someone he designates. In Brady’s case, despite objections from the NFLPA, Goodell chose to hear the appeal; meaning that he would decide whether his original decision to suspend Brady was correct. To no one’s surprise after due deliberation the commissioner decided that the commissioner had made the right call, which moved the ongoing saga into the federal court system.

In September 2015 District Court Judge Richard Berman ruled in Brady’s favor, writing that Goodell had “dispensed his own brand of industrial justice.” Berman found that Brady had been given no notice that his supposed “general awareness” of deflated footballs could result in a suspension, had not been given an opportunity to cross-examine the league’s lead investigator, and had been denied access to the NFL’s investigative notes.

But nearly eight months later, in April of this year, a three judge panel of the Second Circuit Court of Appeals set aside Berman’s decision, ruling that the courts could not second guess the NFL’s arbitration process. The majority opinion stated that “Our role is not to determine for ourselves whether Brady participated in a scheme to deflate footballs or whether the suspension imposed by the Commissioner should have been for three games or five games or none at all. Nor is it our role to second-guess the arbitrator’s procedural rulings. Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act.” The Second Circuit acknowledged that the collective bargaining agreement grants Goodell “especially broad” authority, but added “even if an arbitrator makes mistakes of fact or law, we may not disturb an award so long as he acted within the bounds of his bargained-for authority.”

That decision may have been hailed by legions of Patriots haters last spring, but as many of those same fans are now finding out, its impact is not limited to the team that plays its home games at Gillette Stadium in Foxborough. A process in which the commissioner effectively gets to pick the prosecutor and then serve as judge, jury, appellate court and executioner is inherently unfair on its fact. Yet that’s the process that now has been given the imprimatur of the federal court system; and it’s apparent that Goodell intends to continue to use that “especially broad” authority.

This week the league notified the NFLPA that four players would be suspended indefinitely because they have declined to cooperate with a news report linking them to performance enhancing drugs. Clay Matthews and Julius Peppers of the Green Bay Packers, James Harrison of the Pittsburgh Steelers and free agent Mike Neal face suspension later this month if they won’t answer questions from the NFL about allegations made in a “documentary” broadcast last year by Al Jazeera.

Readers will note that the word documentary is set aside in quotation marks in the last sentence. That’s because shortly after the program first aired, the Texas pharmacist who was the star of the show and the sole witness to the supposed use of PEDs by these players and the recently retired Peyton Manning recanted all of his testimony. From the perspective of the players, there is no news report to investigate. As highly visible public figures, the players rightly believe that they shouldn’t have to respond to every unsubstantiated allegation or wild rumor that happens to have their names attached to it.

Green Bay quarterback Aaron Rodgers slammed the NFL, saying “I think it’s pretty typical of how things have been going lately,” and later adding “they’re going to try and bully these guys into testifying.” In the same interview Rodgers also acknowledged that the players have only themselves to blame, having agreed to the language that’s in the collective bargaining agreement. For his part Harrison pointed out that the Steelers were the only team to vote against the current agreement when it was ratified in 2011, in part because of the overly broad power it gave the commissioner in matters of discipline.

But what choice did they have? Thursday afternoon Matthews, Peppers and Harrison reportedly agreed to be interviewed by the league’s investigators, meaning that the commissioner’s especially broad authority just expanded even more. Meanwhile the current deal between the league and the pretend union that is the NFLPA still has five years to run. Players on many more teams, and the fans of those franchises, could find themselves subject to the whims of the commissioner between now and then. Next time around, the NFLPA might want to act like a real union bargaining for the interests of its members. As for all the fans around the country who cheered the appeals court decision in Brady’s case, the old adage still applies. Be careful what you wish for.