Airing it out: Carfagna discusses legal battle over ‘Deflategate’

Perhaps it’s only fitting that in the dog days of summer, an awful lot of hot air is being expended over the inflation of footballs.

In the case known as “Deflategate,” a federal court judge is presiding over a bizarre dispute between the American sports world’s most profitable entity, the National Football League (NFL), and one of the most successful quarterbacks in its history, Tom Brady. A four-time Super Bowl champion, Brady led the New England Patriots to the title in February.

Peter Carfagna ’79

Credit: Colin McGuire Peter Carfagna ’79, director of the HLS Sports Law Clinic

The NFL has accused Brady of knowing about and perhaps directing efforts by team employees to tamper with air pressure in footballs used by the Patriots in the first half of the American Football Conference championship game last January and of failing to cooperate fully with a league investigation co-led by attorney Ted Wells. Brady and two team staffers have denied taking air out of the balls to gain a competitive advantage against the Patriots’ opponent, the Indianapolis Colts.

Citing a provision in the union’s 2011 collective bargaining agreement (CBA) with the league that concerns conduct that affects game integrity, the NFL suspended Brady without pay for four games. The league expects him to serve that penalty during the upcoming season, which starts Sept. 10. Additionally, the Patriots organization was fined $1 million and lost two draft picks, although it was not accused of wrongdoing.

In May, the National Football League Players Association (NFLPA) appealedthe ruling on Brady’s behalf to NFL Commissioner Roger Goodell, who served as the dispute’s arbitrator. On July 28, Goodell announced that he would uphold Brady’s punishment and filed a complaint in U.S. District Court for the Southern District of New York seeking to have the court confirm his decision.

On Wednesday, the two sides faced off in court for the second time. They are scheduled to reconvene on Aug. 31 unless they reach a settlement before then. U.S. District Judge Richard Berman said Wednesday he intends to rule on the matter before Sept. 4.

Peter Carfagna is a lecturer on law and directs the Sports Law Clinic at Harvard Law School. He spoke with the Gazette about the dispute and what impact the case may have on NFL players and on the league.

GAZETTE: What is the legal framework at issue in this case?

CARFAGNA: It’s been agreed by the union and the league for many, many years that the commissioner would have final, binding arbitration authority — or his designee — unlike the other major leagues, where you go to a neutral arbitrator in these kinds of cases. Battle lines have been drawn. And yet, for each and every subsequent negotiation since the commissioner’s authority was first established, it’s been carried forward … to the point where we are now. … Under Article 46 of the CBA, the commissioner has final and binding authority both at the first level of discipline and also on appeal. That’s the infrastructure, if you will, within which these “conduct detrimental” proceedings get decided.

GAZETTE: Many critics find the NFL’s suspension of Brady unusually harsh, given that he’s accused of rule-breaking that had historically been treated as a minor, fineable infraction. How is this dispute different from prior NFL litigation over player conduct?

CARFAGNA: There are a number of apples-to-apples [comparisons] in football. The most relevant, recent example would be the “Bountygate” proceedings. In that case, Commissioner Goodell on appeal delegated his authority to hear the final, binding arbitration to his predecessor, Commissioner [Paul] Tagliabue, who essentially upheld the commissioner’s authority, but based on the record before him … he reversed Commissioner Goodell as to the player discipline. So that’s the “most like” case here precedentially. “Bountygate” was the classic case of paying players to knock quarterbacks out, to knock other players out. [New Orleans Saints linebacker Jonathan] Vilma filed an individual suit against the commissioner, which was dismissed.

More recently is the four-game suspension for the general manager of the Cleveland Browns, Ray Farmer, which was cited in Commissioner Goodell’s final arbitration order. Ray Farmer was suspended four games, and heavy fines were imposed against the team for illegal texting to sideline coaches during a game. Four games is the normal suspension for performance-enhancing drug use. The commissioner cites that in his final arbitration order. They say that’s similar: Using a performance-enhancing drug is very similar because it gives you an unfair competitive advantage, and if you’re caught, you get four games. So that’s why we’ve got apples-to-apples here, because Brady allegedly had an unfair competitive advantage by using the deflated balls.

GAZETTE: The NFL argues that Goodell has very wide latitude in issuing punishments to players and that, as the arbitrator in this matter, the court should — and historically does — afford him great deference. The NFLPA says the commissioner’s decision to uphold Brady’s suspension resulted from a fundamentally unfair process that relied on inferences by investigators, not direct evidence. Further, union attorneys maintain that he is being punished for an act the NFL has never punished any player for — allegedly knowing about a rules violation committed by others — and one that players were never informed could be punishable. Further, the union argues that in prior instances where players were found to have not cooperated with a league investigation, those players were fined, as per the CBA, not suspended. How do you assess the quality of these two arguments? Who has the better case and why?

CARFAGNA: By signing the uniform player contract, which all NFL players do, including Mr. Brady, you agree to be bound by the CBA and its grievance arbitration procedures. That incorporates, by reference, an agreement to abide by Article 46, which is the “integrity of the game” and “conduct detrimental” [clause]. So I think from a contractual standpoint, in the final award, Commissioner Goodell makes a very strong case that there’s no surprise here, that every player knows that when he signs the individual contract that he’s bound by these provisions.

GAZETTE: So you don’t buy the NFLPA’s argument that while Brady agreed to Goodell’s wide-ranging final authority and to serve as the arbitrator, he didn’t sign away his right to expect a reasonably fair process?

CARFAGNA: Every player, not just Mr. Brady, every player agrees to this process. If the union had wanted a different process, they could have negotiated for same at the last CBA, and they didn’t. So it’s kind of after the fact … to say “we don’t like this process.” Maybe at the next CBA then, you say … “we want a neutral arbitrator.” The other leagues have that, but this CBA with the NFL does not provide for that. The union should renegotiate that Article 46 procedure if it really wants to do away with it next time. … And sure, [Brady attorney] Jeff Kessler makes every argument that any good outside lawyer would make, but they’re after-the-fact arguments.

We have to distinguish between on-field and off-field [behavior]. The personal conduct policy, that’s for off-field. That’s Adrian Peterson, that’s Ray Rice. [Peterson was indicted on child-abuse charges, Rice was indicted on charges of assault. Both players were disciplined.]

GAZETTE: And that’s not part of the CBA.

CARFAGNA: Totally different. They were disciplined under the personal-conduct policy. Now this “law of the shop” business that they’re citing in Brady comes out of Judge [David] Doty’s opinion, in the appeal to him in federal court in Minnesota in the Adrian Peterson case. … So they’re cropping language from an inapposite case, if you will, cropping language from Judge Doty in a personal-conduct policy appeal and overlaying it … by putting it into an on-field misconduct case.

GAZETTE: The NFLPA claims the fact-finding in this case was prejudicial against Brady. Even if the judge feels the case lacks merit, can he act on those grounds, or must he rule only on whether the process the NFL followed was conducted properly?

CARFAGNA: Each circuit has standards, and the Supreme Court has standards for vacating an arbitration award. “Evident partiality” is one of the bases. It’s very rare. There’s a lot of Supreme Court precedents: the Steelworkers Trilogy, Steve Garvey …. Despite the process in his arbitration being outrageous, the court wouldn’t touch the arbitration award. The NFL cites this in its papers. The courts generally say, “We’ll defer because the union has agreed to final arbitration. We are not going to retry the case unless there’s egregious abuse of discretion.” [The NFLPA] may well prevail. They’re doing all the right things. But the NFL, if it goes to final order and they don’t get upheld, they will further appeal it. No doubt about it.

GAZETTE: Why is that?

CARFAGNA: If it’s vacated, they almost have to. Because in Peterson, you’re left with no choice because of the sanctity of final, binding arbitration. I can’t speak for them, but I would assume they would really have to because … that’s really a sacrosanct area that would be invaded by a vacatur [a vacating order].

GAZETTE: Besides upholding or vacating Goodell’s decision, are there other options available to the judge, and what do you suspect he might do?

CARFAGNA: He’s got his magistrate heavily involved in settlement. Typical shuttle diplomacy, certainly in a case like this, [is], ‘Look, you guys don’t want to go because you’re not going to like the final order.’ He’ll be saying that to both sides. It’s wonderful, adept work by a very experienced, settling judge. But so far, neither side appears to be budging.

GAZETTE: Are you surprised this matter has gone this far without resolution?

CARFAGNA: No, not at all. I would not be surprised if they found room in the middle to settle. I am a bit surprised they haven’t been able to do that until now. Some form of suspension — one or two games — some form of admission of culpability. That’s a common middle ground that the NFL, I think, would be well advised to [take]. … Then you put that against one of the greatest players in the history of the game admitting to a violation of conduct detrimental, admitting to a violation of the integrity of the game. That would tarnish his reputation in ways unimaginable. If you’re on his side, you’ve got to be saying, “I will not agree to the findings in the Wells Report; I will not agree that I intentionally violated Article 46.” I think that’s why we’re many months into this, because it’s almost an intractable push me/pull you situation. … If I were advising him, I would say “Don’t lie, but if you didn’t do it, don’t settle.”

GAZETTE: How would a ruling that upholds Brady’s suspension affect other NFL players? And if the judge vacates the arbitration decision, what does that do to the commissioner’s authority over player conduct going forward?

CARFAGNA: Every player now is clearly on notice. Every player now knows, if they didn’t before, that signing that uniform player contract has meaning. That certainly has been brought home in this case loud and clear: That by signing that contract, you’re agreeing to the terms of the CBA, which includes Article 46, which includes final, binding arbitration by the commissioner.

On the league side, because it’s so important, it’s a bedrock principle for labor law generally, that final binding arbitration, once it’s agreed to by the union, doesn’t get overturned by federal court. I think they have to protect that sacred ground.

GAZETTE: Does this case have any potential ramifications for other sports leagues or groups that use collective bargaining agreements like labor unions?

CARFAGNA: No, not particularly. You see an erosion of the commissioner’s authority in the NFL through this constant litigation, constant challenging. But you don’t see that in the other leagues … because everybody agrees the independent arbitrator has the final say in the other leagues. In baseball, that’s how they got to free agency.

GAZETTE: Is there anything instructive you think your students should take away from this dispute?

CARFAGNA: Oh, yeah. I already have the hypo[thetical] in mind: “Write the order that you believe Judge Berman should write if there’s not a settlement and support it with the most persuasive precedent on each side.” We’ll do a little moot court thing a few weeks from now, and we’ll decide. We’ll have half the class do the NFLPA side and half the class do the NFL side, and we’ll vote, and then we’ll take it up on appeal. That’s how I teach all my classes, so I’m looking forward to seeing how the students come out.

This article originally appeared in the Harvard Gazette on August 20, 2015. It was edited by the publication for length and clarity.