The case for Tom Brady: An arbitrator’s take
This Commissioner has been overruled by former federal judges, a current US District Court judge and even former NFL Commissioner Paul Tagliabue for his erratic and arbitrary decisions. In these cases, the Commissioner’s unique brand of industrial due process, was flatly rejected as essentially an exercise in changing the rules along the way. Parties to an arbitration agreement expect and deserve a process that promotes the fair adjudication of disputes.
The Commissioner’s actions were biased from the outset. The one-day appeal hearing was an awkward circus. No arbitrator, partial or impartial, should have allowed the “independent investigator’s” law firm to represent the NFL’s interests at the hearing and deny Brady access to potentially exonerating information. No arbitrator should have allowed the NFL’s General Counsel to avoid cross-examination about his role in preparing the very report on which the Commissioner based his punishment. No arbitrator acting in good faith should have issued a final award analogizing Brady’s “offense” to steroid use and without even mentioning or discussing the schedule of collectively bargained fines arguably applicable to such offenses. And certainly no reasonable arbitrator should have conjured up new grounds to support his own decision after he had imposed discipline on other discredited grounds. These are the hallmarks of a fundamentally unfair arbitration and represent one of the rare exceptions where the courts can and should intervene.
Arbitration is not perfect, but the procedures Commissioner Goodell and the NFL administered in the Brady’s case are outliers and the case sets a dangerous precedent. The Second Circuit should not allow the public’s perception of the arbitration process to be sullied by a Commissioner impersonating an arbitrator.
