Nguyen: Goodell’s Final Decision - Does the Punishment Fit the Crime?

Wednesday, July 29, 2015


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Roger Goodell

On Tuesday, NFL Commissioner Roger Goodell issued his “Final Decision on Article 46 Appeal of Tom Brady” in connection with Brady’s appeal of his 4-game suspension related to Deflategate. Goodell upheld the 4-game suspension that he originally meted out and justified his reasoning in the Decision.

It has been reported that Brady intends to fight the Decision in federal court. The League filed a preemptive action in a federal court in New York on Tuesday, basically asking the judge to rule that the Decision is valid and enforceable.

Should Brady file a claim against the League or Goodell, it is likely that he will file it in the same case that is already filed in New York and seek an injunction, asking the court to keep the status quo while the case is resolved. In other words, allow him to play while the case in pending.

It will be interesting to see what the court does if Brady requests an injunction. Litigation takes a long time and it is unlikely that the court case here would resolve prior to the start of the regular NFL season. Granting Brady an injunction would mean that he plays the games from which Goodell suspended him. But what if the court ultimately finds that Goodell’s Decision is valid? How will Brady pay if the first four games are already played? Or vice versa, if Brady is not granted an injunction and it is ultimately determined that Goodell was wrong, how can Brady be made whole? More importantly, how can Patriots Nation be made whole?

The answers to these questions will happen very quickly – probably within the next month.

While Patriots fans are clamoring for Brady to take it to court, the question is, what exactly would Brady be challenging in court? Brady’s lawyers will likely rehash all the arguments they brought up already – that Goodell should not have been the hearing officer to preside over the appeal, that Goodell did not have a basis for finding that Brady was involved in deflating game balls, and that the punishment does not fit the crime.

Interestingly, the actual Decision may provide more fodder for Brady’s position that the punishment does not fit the crime. The Decision sheds light on why Goodell thinks a 4-game suspension is appropriate.

Here’s an excerpt of the Decision that summarizes Goodell’s findings:

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“The evidence fully supports my findings that (1) Mr. Brady participated in a scheme to tamper with the game balls after they had been approved by the game officials for use in the AFC Championship Game and (2) Mr. Brady willfully obstructed the investigation by, among other things, affirmatively arranging for destruction of his cellphone knowing that it contained potentially relevant information that had been requested by the investigators. All of this indisputably constitutes conduct detrimental to the integrity of, and public confidence in, the game of professional football.”

For the sake of argument, let’s assume these two findings are true. Goodell now has to explain how

suspending Brady for the first 4 games is the right punishment. To do that, Goodell first relies on the argument that “[n]o prior conduct detrimental proceeding is directly comparable to this one,” which conveniently gives him some leeway in determining the “appropriate” punishment.

Brett Favre was fined $50,000 in 2010 for his failure to cooperate with an investigation in a forthcoming manner in connection with the Jenn Sterger scandal. Goodell makes it a point to say that Brady’s case is not the same given “his involvement with the tampering scheme and his destruction of relevant evidence” (his cell phone). However, I daresay that Brady’s case is not the same only because Goodell could not find any violation against Favre. Arguably, the precedent for failure to cooperate in an investigation should be a fine, and the more severe the non-cooperation, the bigger the fine.

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With respect to Brady deflating balls for “competitive advantage on the field” Goodell likened Brady’s conduct to that of players who are caught using performance enhancing drugs. Yes, Goodell thinks that if Brady deflated balls, its comparable to “steroid use [which] reflects an improper effort to secure a competitive advantage in, and threatens the integrity of the game.” A first time offense of steroid use carries a 4 game suspension.

Is that a fair assessment? Is deflating footballs during one game the same as steroid use? In other words should Brady be treated the same as a player who was accused of using steroids and stalled the investigation and was ultimately found to be guilty? Goodell’s comparison of deflating footballs to using steroids will probably be a hot topic in the sports world in the weeks to come.

What do you think?

AiVi Nguyen is a trial lawyer with the Law Firm of Bowditch & Dewey, LLP in Worcester.


Related Slideshow: 5 Things to Know About Tom Brady’s Appeal

Here are 5 things to know about Tom Brady's Appeal.

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The Suspension

Tom Brady was suspended for four games by the NFL on May 11 for his role in deflating footballs.

According to the Wells Report, "It is more probable than not that Tom Brady (the quarterback for the Patriots) was at least generally aware of the inappropriate activities."

Tom Brady has yet to make a public comment on the report, except at a speaking engagement at Salem State, where he claimed to "have no reaction" to the report. 

However, his agent, Don Yee, came out very strongly once the suspension was handed down.

“The discipline is ridiculous and has no legitimate basis. In my opinion, this outcome was pre-determined; there was no fairness in the Wells investigation whatsoever. There is no evidence that Tom directed footballs be set at pressures below the allowable limits," said Yee in a statement.

As it stands now (pre appeal result), Brady's first game back would be against the Indianapolis Colts in mid-October.

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Jeffery Kessler

Shortly after the suspension was handed down, Tom Brady hired attorney Jeffery Kessler to represent him at hs appeal hearing.

Kessler has a histroy of winning big cases against the NFL, most recently a case in which Adrian Peterson was accused in May of 2014 for beating his son with a branch of a tree. 

The case went to federal court and Peterson's suspension was vacated. He was reinstated on April 15, 2015.

Kessler has also represented player associations in all major sports (NFL, NBA, MLB, NHL) and individual athletes in the NFL, NBA, AFL and MLS.

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Goodell the Arbitrator

In mid-May, NFL Commissioner Roger Goodell appointed himself as the arbitrator in the hearing, despite the NFLPA demanding that an independent arbitrator be hired in a letter to the league.

Excerpt From Letter

This letter will serve as a formal demand that the Commissioner follow the Rice precedent and appoint an independent person to serve as arbitrator over Mr. Brady’s appeal. If the Commissioner does not appoint such a neutral arbitrator, the NFLPA and Mr. Brady will seek recusal and pursue all available relief to obtain an arbitrator who is not evidently partial.

Despite the NFLPA asking Goodell to recuse himself on a few other occasions, Goodell has refused to do so saying "I look forward to hearing directly from Tom if there is new information or there is information that can be helpful to us in getting this right."

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Ted Wells at the Appeal

On Monday, June 22, it was reported that Ted Wells will be at Brady's appeal hearing and will likely testify.

Since the release of the report, Ted Wells has come under criticism from all angles, including a Wells Report Rebuttal, released by the Patriots, and has gone on a conference call with media members to defend his report.

“It is wrong to criticize my independence, just because you disagree with my findings," Wells said on the call.

With Jeffery Kessler doing the questioning, Wells will have to defend his report again.

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If Brady wins/ loses

The NFL and NFLPA have left Thursday, June 25 open in case the hearing needs a second day, however, many reports indicate the hearing won't last longer than two days.

“If he is successful in his appeal, it ends there. If Tom isn't successful in the appeal, his only option is to sue in court,” said Attorney and GoLocalProv contributor AiVi Nguyen.

“The collective bargaining agreement is supposed to be the ONLY tool that the league uses to solve problems. Like it's meant to keep the courts out of it.

So if Brady sues in court, one of his arguments must be that Goodell either violated the CBA so it doesn't apply or that Goodell didn't fairly apply the CBA to Brady as compared to others,” Nguyen added.


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