The NFL’s Deflategate appeal is in the hands of the three appellate judges now, and we might not know for several more weeks or even months if the judges will uphold Judge Richard Berman’s decision to vacate Tom Brady’s four-game suspension, or reverse it and side with the NFL.
But a separate legal ruling between the NFL and NFL Players Association came down Sunday afternoon, and while it doesn’t apply directly to the Brady case, it shouldn’t leave Brady supporters too confident about their quarterback’s chances in the appeal. It also shows just how wide the chasm is between the NFL and NFLPA with regard to coming up with a new system of discipline.
Sunday afternoon, independent arbitrator Jonathan Marks settled a grievance that the NFLPA filed in January 2015 about the NFL’s new personal conduct policy, which the league instituted without consulting the union. The NFLPA had argued that Goodell’s use of the “Commissioner’s Exempt List” — which applied to Adrian Peterson and Greg Hardy during the 2014 season — violated the league’s collective bargaining agreement.
The Commissioner’s Exempt List served as a “leave with pay” situation as Peterson and Hardy were banned from playing but continued to collect game checks while their legal situations played out. The NFLPA contended that Goodell’s use of the Commissioner’s Exempt List amounted to a form of discipline that Goodell isn’t allowed to impose without collectively bargaining it with the union.
But, perhaps in an ominous sign for Brady and his legal team, Marks rejected most of that argument in his ruling.
Marks determined that “leave with pay” does not constitute discipline, and that the new personal conduct policy was validly issued under Goodell’s “broad,” “far-reaching,” and “plenary” authority under the NFL’s constitution and bylaws.
Gulp. Those are not the words you want to see if you’re a Brady supporter.
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In a letter written to NFL owners on Sunday and obtained by the Globe, NFL executive vice president Jeffrey Pash characterized Marks’s decision as a major victory for the NFL and the league’s belief that Goodell has wide-reaching powers to suspend players for conduct detrimental to the game, as he did with Brady.
“The decision recognizes and confirms the broad authority that the Commissioner has to define and impose discipline for conduct detrimental,” Pash wrote.
To be clear, Marks’s decision shouldn’t have much, if any, impact on the three appellate judges hearing the Brady-NFL case in the US Court of Appeals for the Second Circuit. An arbitrator’s decision is the lowest rung on the legal totem pole, and the NFLPA will probably contest Marks’s ruling in court.
“This arbitration decision will not move the needle with the Second Circuit,” said sports law attorney Daniel Wallach, who has been following the Brady-NFL case closely from its onset. “What one arbitrator in a different case believes is not going to greatly influence three federal appellate judges.”
But considering how Brady’s legal team appeared to take it on the chin in court March 3, and how Marks’s ruling favors the NFL and Goodell’s broad powers, does anyone feel confident about Brady’s chances of winning the appeal?
Of course, Marks’s ruling was much more nuanced than “NFL Wins, NFLPA Loses,” and the NFLPA actually came out ahead in a few areas. That word “notice” came up again — Marks ruled that even though “leave with pay” isn’t technically a suspension, Article 46 of the CBA still applies, and players must be given a chance to appeal the decision to go on the Commissioner’s Exempt List (with Goodell as the arbitrator, of course). Marks also ruled that Goodell isn’t allowed to delegate his “conduct detrimental” discipline to someone other than himself, as Troy Vincent did in handing down Brady’s original punishment. In effect, Marks confirmed that Goodell should be “judge, jury, and executioner” in these cases.
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In fact, the “delegation” part of Marks’s ruling could help Brady. If Brady loses his appeal and the judges overturn Berman’s decision, Brady has a decent argument that the four-game suspension shouldn’t be automatically reinstated and instead the case should be remanded back to Berman’s courtroom. This decision is good sign that Brady won’t suffer a total loss in appeals court.
“The arbitrator interpreted the delegation provision of the CBA in a manner favorable to Tom Brady,” Wallach said. “It’s directly on point. I think the delegation component could have some bearing on what the second circuit decides to do with the case in the event it reverses all or part of Judge Berman’s decision.”
Basically, if the NFL wins this appeal, Deflategate could drag on for many more months or years. Brady might end up retiring before having to serve any suspension — even if Brady plays until he’s 50, as he likes to say. We’re joking, but not really.
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The other fascinating angle that was revealed Sunday is how close the NFL and NFLPA were to agreeing to a new form of discipline, and how far apart they are now. The sides are so far apart they can’t even agree on a definition of “discipline.”
As Marks noted in his ruling, the parties asked him in August to withhold his decision until February, because they were working toward a resolution. Yet February came and went, and there was no agreement. The parties then asked him to push the deadline back to March 31, and that deadline came and went, too. Now with progress completely stalled, Marks issued his ruling Sunday, siding mostly with the NFL.
In his letter to the owners, Pash Gronk-spiked Marks’s decision in the union’s face and bashed NFLPA leadership for not taking a deal several months ago.
“We offered to make changes in the Personal Conduct Policy that would have benefited players in ways that the union could not obtain from the Arbitrator,” Pash wrote. “Those proposals included giving suspended players credit for a substantial portion of the time spent on the Exempt List (so-called “time served”), refraining from imposing discipline until a player’s underlying criminal case was resolved, and expanding the scope of permitted activities and club contact for suspended players.
“The union elected to terminate negotiations because we would not agree to fundamentally limit the Commissioner’s authority by using third-party appeal officers in all disciplinary matters. The result is that players have obtained very little from the grievance — certainly much less than was available as part of a negotiated resolution — and the authority of the Commissioner has been reconfirmed and strengthened.”
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Ouch.
The NFLPA strongly disagrees with this characterization, of course, but declined to provide an official comment about the negotiations or Sunday’s ruling because “the decision is way more gray than they’re making it out to be,” one NFLPA source said.
But three things became clear Sunday: Goodell’s powers are broader and more wide-ranging than Patriots fans want to believe, the NFL and NFLPA are nowhere close to coming up with a new system of discipline, and Deflategate is going to keep dragging on for a long, long time.
Ben Volin can be reached at ben.volin@globe.com. Follow him on Twitter @BenVolin.