National Football League Players Association v. National Football League et al

Filing 1

PETITION against National Football League, National Football League Management Council. (Filing Fee $400 receipt number 4-846XX.) Case assigned to Judge Richard H. Kyle per Master List referred to Magistrate Judge Hildy Bowbeer. Filed by National Football League Players Association. (Attachments: # 1 Civil Cover Sheet, Exhibits Filed Conventionally) (TSS) [Transferred from Minnesota on 7/30/2015.]

IN Ti{E LTNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MTNNESOTA

NATIONAL FOOTBALL LEAGUE PLAYERS
ASSOCIATION, on its own behalf and on behalf
of TOMBRADY,

caseNo.

/S

C t/

3/b&

Petitioner,

UNREDACTED PETITION
TOVACATE ARBITRATION
AWARI)

-v.-

NATIONAL FOOTBALL LEAGUE and
NATIONAL FOOTBALL LEAGTIE
MANAGEMEN']] COUNCIL,
Respondents.

X

RECEIVED
JUL

2I

Z0l5

',ii^l^ti;?;il'llil[?B?l'

#y'At

Petitioner National Football League Players Association ("I.{FLPA'' or ooUnion"),

on its own behalf and on behalf of Tom Brady, hereby petitions this Court, pursuant to
Section 301 of the Labor Management Relations

Ac\ 29 U.S.C. $

Section 10 of the Federal Arbitration Act, 9 U.S.C $

185

("LMRA"), and

l0 ("FA"{'), to vacate

the July 28,

2015 Arbitration Award (*Award") (NFLPA Ex. 210 heretor) issued by National Football
League ("NFL" or ool-eague") Commissioner Roger Goodell.

INTRODUCTION

l.

Goodell's Award denied the Union and Brady's arbitration appeal of an

unprecedented four-game suspension for Brady's purported o'general awareness" that two

New England Patriots equipment personnel allegedly deflated Patriots footballs prior to
the 2015 AFC Championship Game.

2.

Through this Petition, the NFLPA and Brady seek to set aside the Award,

which defies the binding ruling of this Court in Peterson, ignores the "law of the shop"
and the essence of the parties' collective bargaining agreement

I

("CBA"), and gives the

Exhibit citations herein refer to the exhibits submitted with this Petition. Petition
exhibit numbers l-203 coincide with the numbers of the exhibits submitted by the
NFLPA and Brady through the June 23, 2015 arbitration hearing in the underlying Article
46 arbitration proceeding before Commissioner Goodell which resulted in tlle issuance of
the Award. Exhibit numbers 205-208 are the NFLPA and Brady's post-hearing brief and
attendant exhibits, also submitted to Goodell. Exhibit number 204 is the full transcript
from the June 23 arbitration before Commissioner Goodell.
Petitioners have also filed contemporaneously with the Court an ex parte motion
to file certain of those exhibits, as well as selected portions of this Petition, under seal
because the NFL insisted upon a confidentiality agreement.

back of the hand to fundamental arbitral principles conceming procedural faimess and
arbitrator bias.

3.

ln Peterson, this Court squarely held that the law of the shop under the

CBA affords players advance notice ofpotential discipline. This Court further held in
Peterson that any arbitration award sustaining discipline in the absence of proper notice
is an award contrary to the essence of the CBA and must be vacated.

4,

Thumbing its nose at the Peterson order, Commissioner Goodell's Award

upholds Brady's four-game suspension in its entirety despite the undisputed arbitration

record of several egregious notice defects: Brady had no notice of the disciplinary
standards that would be applied to him; no notice of the disciplinary policies that would

be applied; and no notice of the potential penalties. In fact, the NFL collectively
bargained over the punishments (/ines, not suspensions) for alleged equipment tampering

by players-including those designed to gain a competitive advantage-and was not free

to

disregard that CBA bargain and subject Brady

to other standards, policies, and

penalties without any notice at all.

5.
are: (i)

The notice defects which each independently require vacating the Award

suspending Brady for claimed "general awareness"

of alleged misconduct by

other people, an unknown disciplinary standard never previously applied to players in the

history ofthe NFL; (ii) suspending Brady despite the fact that the Player Policies provide

only for specified/zes for any type of equipment violation; (iii) subjecting Brady to the
Competitive

Integrif Policy, which applies only to Clubs-not players; and (iv)

suspending Brady for alleged non-cooperation, when a fine is the only penalty tlrat has

ever been upheld in such circumstances. By ignoring each one of these notice failures,

the Award-as in Peterson-utterly disregards the CBA law of the shop and must be
vacated for deffing the essence of the CBA.

6.

But the Award's legal defects do not stop there. The Award ignores the

law of the shop requirement of fair and consistent treatment by basing discipline on ball
pressure 'testing" that the NFL concedes did not generate reliable information because

of

its failure to implement any protocols for collecting such information. Additionally, the
Award is the product of a fundamentally unfair process, and was issued by an evidently
partial arbitrator who put himself in the position of ruling on the legality of his own
improper delegation

of authority in violation of the CBA. Each of

these grounds

independently requires vacating the Award.

SUMMARY OF ARBITRATION PROCEEDINGS

7.

Tom Brady quarterbacks tlre New England Patriots and is one of the most

successfirl players----on and off the

field-in NFL history.

This past February, he led the

Patriots to their fourth Super Bowl championship during his tenure with the team, tying

him for the most all-time Super Bowl victories by a quarterback.

8.

Following the 2015 AFC Championship Game, the NFL launched an

investigation into whether the Patriots footballs were improperly deflated below the
pressure range

('?Sf') permitted by NFL rules. Goodell

commissioned one

League's regular outside law firms, Paul, Weiss, Rifkind, Wharton

&

of

the

Garrison ('?aul,

Weiss"), led by partner Theodore Wells, to co-lead the "Deflate-gate" investigation along

with NFL Executive Vice President and General Counsel Jeffrey Pash (the "Wells-Pash

Investigation"). NFLPA Ex. 7, Wells Report at
publicly touted the Wells-Pash lnvestigation

9,

6

1.

The League and Paul Weiss have

"inde.Fendent."

The investigation was conducted, and punishments imposed, under the

NFL's Policy on Integrity of the Game
("Competitive Integdty

Policy").

Id.

&

Enforcemenr

Howevero

of

Competitive Rules

by its own terms, the Competitive

Integrity Policy applies to Clubs-zat players. Accordingly, the Competitive Integrity
Policy was never given to players, and it is undisputed that Brady never saw the Policy
prior to these proceedings. NFLPA Ex. 210, Award at 17 n.19.

10.

On May 6, many months and many millions of dollars in legal fees later,

Paul, Weiss and the NFL issued the 'oWells Report' summarizing the findings from their

investigation. The purportedly independent Wells Report was edited by Pash, the NFL's
General Counsel, before its public release, The Report concluded that
probable than

nof' that two

it was "more

Patriots equipment employees-John Jastremski and Jim

McNally-had violated the Competitive Integrity Policy by "participat[ing] in

a

deliberate effort to release air from Patriots game balls after the balls were examined by

the referee" prior to the start of the AFC Championship Game. NFLPA Ex. 7, Wells
Report at

2.

The Wells Report reached this conclusion notwithstanding the denials

Jastremski and McNally and the absence

of

of any other witness or document directly

suppoding the claims of ball deflation. Moreover, even though footballs are expected to

naturally deflate when moving from a warm locker room to a cold-weather environment
(like the AFC Championship Game), the Wells Report concluded that human intervention
was "more probable than not" based on a statistical and scientific analysis. At the same

time, however, the Wells Report conceded that this analysis rested on numerous
;'assumptions"-because of the League's failure
to record the necessary data-and that

"varying the applicable assumptions can have a material impact upon the ultimate
conclusions." Id. at 73.

11.

With respect to Brady's alleged role, the Wells Report findings were even

more limited. The Report concluded it was "more probable than not that Brady was at
least generally awereo' of the alleged misconduct by

McNally and Jastremski

.

Id. at

17

(emphasis added). The Wells Report did not find that Brady actually knew about any

ball deflation at the AFC Championship Game; it did not find that Brady directed or
authorized any ball deflation; nor did

it find that Brady even had any knowledge ofthe

Competitive Integrity Policy pursuant to which he was punished and the Wells-Pash
Investigation was conducted.

12.
whal

if

After the Wells Report was released, the Union and Brady waited to

any, action Commissioner Goodell would

see

take. As the Commissioner,

Goodell-and no one else-has the exclusive authority under the CBA to take certain
disciplinary actions against players for conduct detrimental to the League. But" in this
case, Goodell improperly abdicated his CBA role and delegated his disciplinary authority

to NFL Executive Vice President Troy Vincent.

13.

Vincent, invoking the Competitive Integriry Policy (as opposed to the

applicable League Policies for Players ('?layer Policies")), and resting solely on the

limited factual conclusions from the Wells Report about Brady's alleged "general
awareness," suspended Brady for four games. NFLPA Ex. 10. Vincent also based this

punishment on Brady's purported failure to cooperate with the Wells-Pash lnvestigation.

Id. T\e full

extent of the alleged oonon-cooperation" found by Wells and cited by Vincent

was Brady declining, on the advice of his agents who were also acting as his attomeys, to

respond to Wells' requests to produce certain of his private text messages and e-mails.

Id. T\e applicable

Player Policies on equipment violations were not even considered in

Vincent's discipline letter.

14.

On May 14,2015, Brady timely appealed his suspension pursuant to Article

46 of the CBA. Goodell decided to serve as the arbitrator. Brady and the NFLPA moved

for his recusal because, among other things, Goodell had directed the unlawful delegation
of his CBA disciplinary authority to Vincent. Thus, as arbitrator, Goodell would have to
determine the facts and CBA legality of his own conduct. Moreovero Goodell was an
essential witness on the delegation issue and obviously could not serve as both arbitrator

and a fact witness in the same proceeding. NFLPA Ex.

11.

The Commissioner

nonetheless rejected the recusal request. NFLPA Exs. 157, 160.

15.

On June

8,2415,

Goodell held the arbitration.

,See

NFLPA Ex. 204. The

hearing defied any concept of fundamental faimess. Prior to the hearing, Goodell had

ruled that Brady and the Union could not question essential witnesses, denied them
access

to the investigative files underlying the Wells Report (which were nonetheless

available

to the NFL's

counsel at the arbitration), and summarily rejected Bradyos

unlawful delegation argument without considering any evidence (other than 'ofacts"
decreed by Goodell himself

in his decision). At the hearing itself, Paul, Weiss-the

purportedly o'independent" law

firm whose findings about Brady were

being

challenged-abandoned all pretense of objectivity, and actively participated as counsel

for the NFL conducting direct and cross-examinations of witnesses (including Brady's).

A Paul. Weiss partner represented the NFL for most of the hearing, even though he was a
signatory to the Wells Report and his law partner (Wells) was a fact witness at the same
hearing.

16.

In addition, the arbitration

established that the

NFL had no

procedures

whatsoever for collecting information essential to determining whether the Patriots balls
had deflated due to environmental factors or human intervention. In fact just three days
ago, the NFL let it be known that, for the first time, it is implementing procedures for ball
pressure

testing-a stark

concession that it had no procedures in place when the data on

which Brady's punishment was based was collected. The League's admitted failure to

timely implement any such data collection protocols caused the League's scientific and
statistical consultants to make a multitude of unsupported assumptions and rendered their
analysis utterly unreliable.

17.

And, the hearing confirmed all of the undisputed facts about the lack of

proper notice.

18.

On July 28, 2015, Commissioner Goodell issued the Award upholding

Brady's suspension. True to form, Goodell's Award is little more than an exercise in
rehashing the Wells Report, and making unfounded, provocative and mystifying attacks

on Brady's integrity. At the same time, the Award ignores the fundamental legal
arguments presented by the Union which form the basis of this Petition and require that
the Award be set aside.

19.

For example, the Award disregards the myriad defects in notice-

contending that Brady's knowledge that, in the broadest sense, he could be suspended for

"conduct detrimental" eliminated the need for the League to provide any notice about
whether a general awareness standard of conduct could be applied, which policies could

be applied, and what the potential penalties for violations of the applicable Player
Poiicies might be. But this contention has already been rejected by this Court in NFLPA
v. NFL (Adrian Peterson)o slip op. at 12-14 (D. Minn. Feb.26,2Al5), appeal docketed,

No. 15-1438 (8th Cir. Feb.27,2015) (which the Award also ignores), where the domestic
violence conduct at issue constituted conduct detrimental under any policy, but where the
arbitration award was nevertheless vacated because
requirement that Peterson have advance notice

it violated the essence of the CBA

of the speciJic policy

and penalties to

which he could be subjected NFLPA Ex. 153.

ZA.

Here, the only arguably applicable policy was contained

in the

Player

Policies, but the Award deliberately ignores this fact because those Policies expressly

provide for modest fines-not suspensions. NFLPA Ex. 114 at
ignores Vincent's application

ofa "generally aware" disciplinary standard that was pulled

from whole cloth without notice and applied to

21.

20. The Award also

a

player for the first time in NFL history.

The most the Award has to say about notice is to try to deny, in a footnote,

that either the Competitive Integrity Policy or any other policy was applied. NFLPA Ex.
210, Award at 17, n.19. Putting aside that this assertion belies the arbitration record that

Vincent did apply the Competitive Integrity Policy to Brady and punished him for being
generally aware that Patriots equipment personnel violated that policy" it does not save

the Award from vacatur. According to the Award, Brady was suspended for general
awareness vnder no policy, but there is a speci/ic Player Policy conceming equipment

violations that does not provide for suspensions or "general awareness" violations. This
is

just the type of notice defect which this Court fovnd in Peterson. There, Peterson had

notice of one version of the Commissioneros Personal Conduct Policy, only to have the
Commissioner apply a different version of the Personal Conduct Policy with different
rules and penalties.

22.

The Award also makes much

of Brady's purported

non-cooperation,

(including a brand new, hyperbolic and baseless accusation that Brady "destroyed" his

cell phone after being advised by his
communications to the NFL's outside law

agents-lawyers

firm), This

not to tum over private

issue is a complete red herring

because the NFL already had all ofthe relevant text communications by Brady from other

Patriots personnel-a fact established by Brady's telephone records, which were
produced at the hearing, and which showed the time and date of every text and phone call
to or from Brady and Patriots personnel (or anyone else). NFLPA Exs.

23.

l,

3.

But most importantly for purposes of this Petition, Goodell's decision on

the punishment for alleged non-cooperation yet again violates the CBA requirement

of

notice. As his predecessor, Commissioner Tagliabue, ruled when serving as a CBA
arbitrator:

There is no evidence ofa record of past suspensions based
purely on obstracting a League investigation. In my forly
yeaw of association with the NFL, am aware af many
inslances of denials in disciplinary proceedings that proved
to be false, but cannot recall any suspension for such

I

I

10

fabrication. There is no evidence of a record of past
suspensions based purely on obstructing a Leogue
investigation.

NFLPA Ex.

24.

ll3,

Bounty, slip op. at 13 Q0l2) (Tagliabue, Arb.).

The Award further ignores that Wells never once told Brady that discipline

could flow from declining to produce his personal text messages or e-mails.

25,

With respect to the other grounds for vacatuq the Award also tums a blind

eye to the NFL's undisputed failure to implement procedures for testing the footballs at

the AFC Championship Game such that there was no fair and consistent basis for the

NFL to base any punishment on its consultants' conclusions; ignores the procedural
defects depriving Brady

of a

fundamentally

fair hearing; and says nothing

about

Goodell's evident partiality.

26.

ln a public

statement issued earlier today, Patriots Owner Robert Kraft

appropriately summarized the Award:

The decision handed down by the League yesterday is
unfathomable to me. It is routine for discipline in the NFL to
be reduced upon appeal.

In the vast majority of these cases, there is tangible and hard
evidence of the infraction for which the discipline is being
imposed, and still the initial penalty gets reduced. Six months
removed from the AIC championship game, the League still
has no hard evidenoe of anybody doing anything to tamper
with the PSI levels of footballs. I continue to believe and
unequivocally support Tom Brady....

The League's handling of this entire process has been
extremely frustrating and disconcerting. I will never
understand why an initial erroneous report regarding the PSI
level of footballs was leaked by a source from the NFL a few
days after the A-FC championship game, [and] was never

1l

corrected by those who had the conect information. For four
months, that report cast aspersions and shaped public opinion.

Yesterday's decision

by

Commissioner [Goodell] was

released in a similar mamer" under an enoneous headline that
read, ooTom Brady destroyed his cellphone." This headline
was designed to capture headlines across the country and
obscure evidence regarding the tampering of air pressure in
intentionally implied nefarious behavior and
footballs.
minimized the acknowledgement that Tom provided the

It

history of every number he texted during that relevant time
frame....

Tom Brady is a person of great integdty, and is a great
ambassador of the game, both on and off the field. Yet for
reasons that I cannot comprehend, there are those in the
League offtce who are more determined to prove that they
were right rather than admit any culpability of their own or
take any responsibility for the initiation of a process and
ensuing investigation that was flawed. I have come to the
conclusion that this was never about doing what was fair and
just....

I

was wrong to put my faith in the League. Given the facts,
evidence, and laws of science that underscore this entire
situation, it is completely incomprehensible to me that the
League continues to take steps to disparage one of its all-time
great players, and a man for whom I have the utmost respect.
Personally, this is very sad and disappointing to me,2

27.

As in Peterson, the Court must again intervene and vacate the Award,

which (i) violates the law of the shop requirement of noticeo (ii) violates the law of the
shop requirement of faimess and consistency,

(iii) is the product of fundamentally unfair

proceedings, and (iv) was issued by an evidently partial arbitrator.

2

See

Florio: Robert Kraft tees offon Brady ruling, ProFootballTalk.Com (July 29,

2Al\,httpl

lprofootballtalk.nbcsports.com/20BlA7 /29/robert-kraft-tees-off-on/.

t2

28.

Because the Award was issued on the eve of the 2015 NFL season, it

ineparably harm Brady

if

will

he misses games while the Court considers the merits of the

Petition. Accordingly, the NFLPA and Brady will shortly file a Motion for Preliminary
Injunction or, in the Altemative, for Expedited Disposition so that relief can be granted

prior to September 4, 2015, when the Patriots begin frral preparations for their first
regular season game.

JT]RISDICTION AND VENUE

29.

This is an action to vacate the Award pursuant to Section 301 of the LMRA

and Section

l0 of the FAA. This Court has subject matter jurisdiction in this action

pursuant to 28 U.S.C. $ 1331.

30.

The NFL derives revenue from advertising, ticket sales, merchandising and

broadcast revenue throughout

the State of Minnesota and is subject to

personal

jurisdiction here. The Minnesota Vikings, one of 32 NFL franchises, is headquartered in
Eden Prairie, Minnesota and does business in this district.

31.
as the

Venue is proper in this court under 28 U.S.C. $ 1391 and 29 U.S.C. $ 185,

NFL regularly transacts business in this district.

PARTIES

32.

Petitioner NFLPA is a non-profit corporation duly organized and existing

under the laws

of the

Commonwealth

collective bargaining representative

of Virginia and is the Union and

of all

exclusive

present and future NFL players, including

Brady. The NFLPA's offices are located at 1133 20th Street, N.W., Washington, D.C.
20036.

I.]

33.

Petitioner Tom Brady is a professional football player and member of the

NFLPA. He was selected by the New England Patriots in the 2000 NFL Draft and
spent his entire career with that

Club. During that time, Brady

has

has won four Super

Bowls, been named Super Bowl Most Valuable Player three timeso and been awarded the

NFL's Most Valuable Player twice. Brady resides in Massachusetts.

34.

Respondent NFL maintains its offices at 345 Park Avenue, New York, New

York, 10154, and is an unincorporated association consisting of32 separately owned and
operated professional football franchises, one of which is located in this

District. All

NFL franchises conduct business by playing professional football games in this Disticl.

35.

Respondent National Football League Management Council ("NFLMC") is

the exclusive bargaining representative of all present and future employer member
franchises of the NFL.

RELEVANT NON-PARTIES

36.

Roger Goodell is the Commissioner of the NFL, i.e., the de facto chief

executive officer. He also served as the arbitrator in this case.
37

.

Troy Vincent is the NFL Executive Vice President of Game Operations.

He imposed Brady's discipline.

38.

Theodore Wells, Jr. is a partner in the law firm of Paul, Weiss who serves

as counsel to the

NFL and declared that his firm was acting as "independent" counsel in

investigating the Patriots and Brady for alleged improper ball deflation.

t4

39.
NFL.

Jeftey Pash is an Executive Vice President and General Counsel of the

He was identified by the NFL as the co-lead investigator, with Wells, in this

mafler.

DETAILED STATEMENT OF ARBTTRATION FACTS

A.
40.

COMMISSIONER DISCPLINE OF PLAYERS UNDER THE CBA
The parties are bound by the CBA negotiated between the NFLMC, on

behalf of the NFL member teams, and the NFLPA, on behalf of all NFL players. The
current CBA was signed on August 4, 201L

41.

Paragraph 15

of the collectively bargained

standard form

NFL

Player

Contract provides the Commissioner with the exclusive authority to impose discipline on

NFL players for'oconduct detrimental to the League." NFLPA Ex. 108, CBA App. A, tl
15.

42.

No one other than the Commissioner is authorized by the CBA to impose

discipline on players for conduct detrimental. For example, Article 46 provides the
"exclusive" procedures for conduct detrimental disciplinary appeals and refers only to

"action taken against a player by the Commissioner for conduct detrimental to the
integrity of, or public confidence in, the game of proGssional football." NFLPA Ex. 107,
CBA tut. a6, $ l(a) (emphasis added).

43.

Moreover, whereas Article 46 expressly provides for the Commissioner to

delegate his authority to serve as Hearing Officer in player appeals,
such delegation

it provides for no

ofhis exclusive disciplinary authority in the first instance. Id. $ 2(a).

15

M.

Although the NFLPA agreed that the Commissioner or his designee could

serve as the arbitrator for ordinary Article 46 disciplinary appeals, the NFLPA did not

agree that the Commissioner could do so under circumstances where, as here, the
Commissioneros own conduct is at issue.

45.

Accordingly, in two recent prior arbitrations in which the Commissioner's

own conduct and statements were at issue-Bounty and Ray Rice-even Commissioner
Goodell concluded that he had to recuse himself. '9ee NFLPA Exs. 113. 124.

46.

Additionally, in a similar situation involving former NFL Commissioner

Paul Tagliabue, a New York court held that he could not lawfully serve as arbitrator over

a player dispute---+ven though the NFLPA had previously agreed to Commissioner
arbitration-because the proceeding put at issue Commissioner Tagliabue's own conduct.
See, e.g.o Morris v. N.Y. Football Giants, 575 N.Y.S.2d 1013, 1016-17 (N.Y. Sup. Ct.

l99l).

B.

THE CBA LAW OF THE SHOP AFFORDS PLAYERS ADVANCE
NOTICE OF POTENTIAL DISCPLINE

47.

It is established law of the shop under the CBA that NFL players may not

be subject to discipline without advance notice of what conduct might result in such
discipline, and what the disciplinary consequences might be. NFLPA Ex. 153, Peterson,

slip op. at 12-14: see also NFLPA Ex. 124, Rice, slip op. at 16 (2014) (Jones, Arb.)
(holding retroactive punishment prohibited because

it is inconsistent with the CBA

requirement of notice); NFLPA Ex. 113, Bounty, slip op. at 6 (former Commissioner
Tagliabue vacating Commissioner Goodell's discipline

l6

of four New

Orleans Saints

players for, among other things, lack of notice, and holding that

ooa

sharp change

in . . -

discipline can often be seen as arbitrary and as an impediment rather than an instrument

of change"); NFLPA Ex. 91, Reggie Langhorne, slip op. at 25 (1994) (Kashea Arb.)
(setting aside fine and suspension because player '1ras entitled at some time to be placed
on notice as to what consequences would flow from his refusal to [abide by the rules].

Any disciplinary program requires that individuals subject to that program understand"

with reasonable certainty, what results will occur

if

they breach established rules.");

NFLPA Ex. 101, Riclq Brown, slip op. (2010) (Beck, Arb.) (vacating team discipline
because player did not receive notice of rule he was accused of violating); NFLPA Ex.
99, Laveranues Coles, slip op. (2009) (Townley, Arb.) (same).

48.

The CBA requirement of notice was recently affirmed by former U.S.

District Court Judge Barbara Jones in Rice and by this Court in Peterson. Judge Jones,
sitting as Article 46 arbitrator over former Baltimore Ravens running back Ray Rice's
disciplinary appeal, held that-notwithstanding Commissioner Goodell's broad discretion
under the

CBA-he

was prohibited from imposing discipline on players

where they do not have prior notice:

Recognizing that even under the broad deference afforded to
him through Article 46, he could not retroactively apply the
new presumptive penalty to Rice, the Commissioner called
Rice to ensure him that his punishment would remain
unchanged. Through this action, Commissioner Goodell
acknowledged what the NFL has repeatedly stated in these
proceedings: that the Commissioner needed to be fair and
consistent in his imposition of discipline.

NFLPA Ex. 124, Rice, slip op. at

16.

11

in

situations

49.

Furtlermore, Goodell testified tn Rice that he could not retroactively

discipline Rice under the NFL's new Personal Conduct Policy because the NFL is
"required to ghte proper notification" ofplayer discipline' NFLPA Ex. 122, Rice Tt.
100:13-14 (emphasis added); see also id. 101:7-13.

50. ln Peterson, the Court vacated arbitrator Harold Henderson's award
affirming the retroactive application of the NFL's new Personal Conduct Policy to Adrian
Peterson. The Court held that Henderson had "simply disregarded the law ofthe shop"
requirement of notice. NFLPA Ex. 153, Peterson, slip op. at l'2-14. Although the NFL
has appealed this Court's ruling to the Eiglrth Circuit Court of Appeals,

it did not seek a

stay of the decision, and thus the order remains in effect and estops the NFL from any
attempt to relitigate the CBA requirement of notice.

51.

Most recently, even Arbitrator Henderson ruled in the Hardy proceedings

that the six-game minimum penalty set forth in the new Personal Conduct Policy could
not be applied without advance notice-having apparently been chastened by this Court's

decision in Peterson. Greg Hardy, slip op. at 12 QAIS) (Henderson, Arb.).

C.

THE CBA LAW OF THE SHOP ALSO REQUIRES (FAIR AND
CONSISTENT" DISCIPLINE

52.
be

A long line of CBA

precedents holds that discipline under Article 46 must

"fair and consistent.' NFLPA Ex,

124, Rice, slip op. at

8. "Where the imposition of

discipline is not fair or consistent, an abuse of discretion has occurred" and the discipline
must be overtumed. Id.: see also id. at 16
consistent in his imposition

('the Commissioner

of discipline"). No

18

needed to be

fair and

less an authority than Commissioner

Tagliabue has held, serving as arbitrator in Bounty, that the role of the Article 46 Hearing

Offrcer is to "review[] the discipline for consistency of treatment, uniformity of standards

for parties similarly situated and patent unfaimess or selectivity." NFLPA Ex.

113,

Bounty, slip op. at 4.

53.

Indeed, Goodell acknowledged in his testimony

n

Rice that he is bound by

this CBA requirement'oto be consistent with consistent circumstances, and so if there are
consistent circumstances, I think that's about faimess, and fairness would be you should
be as consistent as possible in your discipline." NFLPA Ex.722,
see a/so NFLP

54.

RiceTr. 164:18-165:6;

124, Rice, slip op. at 5-6 (quoting Goodell).

AEx.

Even Arbitrator Henderson, in Peterson, recognized that

conduct

detrimental discipline must be fair and consistent. NFLPA Ex. 153, Peterson, slip op. at

9 (quoting

Henderson decision applying the established CBA standard

of "fair

and

consistenf' treatment). And the Award itself states Goodell's "belie[fl in the need for
consistency in discipline for similarly situated players." NFLPA Ex.210, Award at 14.

This is the undisputed law ofthe shop.

D. THE NFL

INVESTIGATES THE PATRIOTS' ALLEGED
DEFLATION OF FOOTBALLS IN THE AT'C CHAMPIONSHIP

GAME

1.
55.

The NFL Implements No Protocols for Collecting Information
About Football Deflation Prior to the AFC Championship Game

On the night before the AFC Championship Game, lndianapolis Colts

General Manager Ryan Grigson sent an e-mail to NFL operations accusing the Patriots

of

attempting to gain a competitive advantage by using underinflated footballs. NFLPA Ex,

t9

152; NFLPA Ex. 7, Wells Report at 44-45. T'he

NFL did not take this complaint very

seriously and did not inform the Patriots before the game that there was any issue with
ball tampering. NFLPA Ex. 7, Wells Report at 46 n.25.

56.

Nor, despite the Colts' complainq did the NFL implement any procedures

for measuring the footballs and collecting other information that would be essential to
understanding and assessing a change in football pressure. This was because no one at
the NFL knew that natural forces oftemperature, timingo and wetness could cause balls to
lose pressure after being tested and set by officials before the game.

57.

More specifically, no one at the NFL knew there was something called the

Ideal Gas Law explaining that balls would naturally deflate when brought from a warm
environment (i.e., the officials' locker room) to a cold environment (i.e., the

field). As

a

result, the NFL did not know how to instruct the referees in terms of what testing to
conduct and what data to record other than simply taking PSI readings. lndeed, the NFL
had no established procedures at all for testing balls during games, at halftime, or after
games.

58.

Although each team's footballs were measured by the game day officials

prior to the game, the PSI measurements were not recorded, the gauge used to measure
(and set) PSI was not recorded, and none

of

tJle environmental factors (such as the

Iemperature in the locker room and on the field) were recorded. NFLPA Ex. 7, Wells
Report at 5I-52, 116.

59.

During the first half of the game, the Colts examined a ball intercepted

from the Patriots and made a further complaint to the NFL. In responseo the NFL decided

20

to ask the referees to

measure the air pressure

in both teams' game balls at halftime.

NFLPA Ex.7, Wells Report at 63-66.

60.

Because of the absence

of any protocols or basic understanding of what

factors are relevant to football deflation, the data collection was a disaster. None of the

following was recorded: the temperature on the field; the temperature in the officials'
locker room where the balls were tested; the specific gauge used to conduct the testing
(where, as here, multiple gauges were used and each had very different calibrations and

yielded different readings); whether the balls were wet or dry (and how wet or dry); the
sequence and timing

of the halftime measurements (this was the most critical factor,

because both teams' balls would wann and gain pressure minute-by-minute after being

retumed from the cold and wet field to the warm and dry locker room, yet the balls were
measured at different times). The Wells Report even states that the PSI measurements

of

tlre eleven Patriots balls and four Colts balls that were measured-the only data that was

recorded-contttin

61.

a

transcription error. NFLPA Ex. 7, Wells Report at 69 n,41.

After the game, officials tested the pressure level of four footballs from

each team. Once againo however, none of the critical information necessary to determine

the meaning of the PSI readings was recorded. 1d. at72-73.

62.

The data collection was so deeply flawed that even Wells and the NFL's

consultants concluded that it was unreliable:

Our scientific consultants informed us that the data alone did
not provide a basis for them to determine with absolute
certainty whether there was or was not tamperingo as the
ultimately dependent upon
such data
analysis
assumotions and information that is uncertain.

of

is

2l

NFLPA Ex. 7, Wells Report at

63.

12.

Just three days ago, the NFL made

it known that it is finally going to

implement procedures for testing ball pressure during the upcoming NFL Season-a year
too late for Brady.3

2.

The NFL Misunderstands the Halftime Data and Proceeds to
Commission the Wells-Pash Investigation

64.

Unaware of the Ideal Gas Law and the now undisputed fact that science

predicts that the Patriots (and Colts) balls would drop in pressure after they were brought

from a warm locker room to a cold field, NFL Senior Vice President of Football
Operations David Gardi sent a letter to Patriots owner Robert Kraft on January 19,2415,

informing him that the NFL was launching an investigation based on the measurements
taken at halftime of the AFC Championship Game indicating that the Patriots balls had
lost pressure during the first half of the game. NFLPA Ex. 136; NFLPA Ex. 7, Wells
Report at 100-101.

65.

Not only did this letter fail to acknowledge the fundamental flaw in the

NFL's premise that any drop in ball pressure suggested tamperingo or the absence of
critical data from which to assess any reduction in pressure, the letter got the PSI
measurements wrong. Gardi wrote that one of the Patriots balls had measured at 10.1 PSI

3 See

Pereira: NFL informs ofliciak of new procedures for game 6al/s, FoxSports.com

(htly 26, 2015), http://www.foxsports.com/nfVstory/deflategate-new-england-patriotsmike-pereira-changes-to-game-bal1s-0726

I

5?vid4929920 67 892'

22

when in fact none of the Patriots balls had measured at such a low pressure. NFLPA Ex.
136 at 2; NFLP

66.

AEx.7, Wells Report at 100-101.

On January 23,2015, the NFL announced that it had retained Wells and his

firm, Paul, Weiss, to co-lead the investigation along with Pash. NFLPA Ex.

Ex. 7, Wells Report at

l.

l8l; NFLPA

In recent years, Paul, Weiss has represented the NFL in

a

number of important legal matters. For example, the NFL paid Paul, Weiss more than $7

million to defend the League in a recently settled class action related to concussion
liability.a NFLPA Ex.

184, Judge Approves Deal in N.F.L. Concussion Suit at

4.

With

respect to the Wells-Pash lnvestigation alone, Paul, Weiss had already billed the NFL

millions

of

dollars at the time

of the hearing for its services in

conducting the

investigation.

67.

Despite its close ties to the Paul, Weiss firm, the NFL touted the purported

o'Wells and his firm
"independence" of the law firm in conducting the investigation:

bring additional expertise and a valuable independent perspective." NFLPA Ex.

181

(emphasis added). Wells publicly declared Paul, Weiss to be "independent" of the NFL.

NFLPAEx. 189at 1,3.

68.

Despite the NFL declaring Paul, Weiss's 'oindependence," the Award

confirms the NFL and Paul, Weiss considered themselves to have an attorney-client
relationship for purposes of the investigation. Award at 19 n.20 (NFL asserted attomey-

client privilege over its communications with Paul, Weiss). Adding to the circus-like

a

In re Nat'l Football League Players' Concussion Injury Litig., l2-md-02323 (E.D. Pa.).

23

atmosphere

of the proceedings, Wells' partner Lorin Reisner (who signed the Wells

Report's cover page) sat at counsel table for the NFL at the arbitration, conducted the

vast majority of witness examinations (including Brady's), and otherwise defended
Brady's discipline even though his personal work on the Wells Report was being
reviewed, and even though his law partner Wells testified at the hearing. See generally

Hr'g Tr. And, as the Award acknowledges, Wells asserted attorney-client privilege over

his communications with the NFL in connection with the Wells-Pash Investigation.
NFLPA Ex. 210, Award at

69.

19

n.21.

Wells further testified that Pash even had an opportunity to comment on a

draft of the Wells Report before it was issued.

IIr'g Tr.

268:17-25 (Wells); NFLPA Ex'

210, Award at 19 n.21.

70.

As part of the Wells-Pash Investigation, Wells, Reisner, and the Paul,

Weiss team interviewed a number of individuals from the League, the Colts, and the
Patriots, including Brady. NFLPA Ex. 7, Wells Report at

24'27. lt is undisputed that

Brady was interviewed for seven hours and was totally cooperative, answering every
question that Paul, Weiss put to him.

71.

The only Paul, Weiss request that Brady declined was to look for and

produce certain private text messages and e-mails. As Brady testifled, he declined Paul,

Weiss' request for his electronic information solely on the advice of his agents-lawyen.

IJr'g Tr. 84:18-85:9. But it is undisputed that Wells never informed Brady that there
could be azy disciplinary consequences

if he did not comply with the request for e-mails

and texts.

24

72.

Moreover, Brady testified that

if

anyone had told

him he could be

suspended for declining to produce the private communications, he would have produced

them-notwithstanding the advice of his agents-lawyers. Id. 86t8-20 (Brady).

73.

Prior to the appeal hearing, Brady voluntarily produced all ofthe requested

commnnications in his possession (see infra

\

86). The NFL does not dispute that these

communications contain absolutely no incriminating information. Instead, the NFL
complains that they do not include all of the requested text messages because Brady
disposed of his phone (consistent with his practice over many years). but Brady produced

all of his phone records (showing whom he texted with and when) and testified at the
hearing-just

as he had

told Wells and Reisner months before at his interview-that there

never were any incriminating e-mails or text messages for the simple reason that he had

nothing to do with any ball deflation. Hr'g Tr. 85:13-86:1, 86:21-23,89:24-90:9. While
the Award makes much of the discarded phone, Bradyos phone records confirm that the
League had access to any text messages between Brady and Jastremski and Schoenfeld
because the League had access

to their phones, and Brady simply had no phone or

electronic communications of anv kind with McNallv. NFLPA Ex.

3.
74.

1.

The Wells Report Concludes That There Is No Direct Evidence
Implicating Brady but Nonetheless Finds That He Was
"Generally Awareo' of Misconduct by Others

On May 6,2015, Pau1, Weiss and the NFL released the Wells Report (after

receiving comments on a draft ftom Pash, the NFL's General Counsel and publicly
proclaimed co-lead investigator), The Report concluded that it was "more probable than

not" that Patriots employees Jastremski and McNally tampered with footballs in violation

25

of the Competitive Integrity Policy. NFLPA Ex. 7, Wells Report at

2. lt reached

this

conclusion despite finding no direct evidence of misconduc! and despite the flaws in data

collection that rendered the statistical and scientific analysis admittedly 'ouncerlain," Id,
at 72-

17 .

75.

The Wells Report also concluded that although its four-month investigation

had not yielded any "direct evidence linking Brady" to this alleged ball tampering, it was

nonetheless 'omore probable than not that Brady was at least generally aware" of the
alleged misconduct of others violating the Competitive Integrity Policy. Id. at

17

.

this very narrow factual conclusion regarding Brady was entirely inferential.

Even

It

is

undisputed that everyone interviewed-including Brady--denied any ball tampering or
knowledge of ball tampering.

76.

To reach the conclusion that Brady was "generally aware" of alleged ball

tampering by Jastremski and McNally, Wells drew an adverse inference-subsequently
sustained by the

Award-ftom the fact that Brady would not respond to the request for

his texts and e-mails. But Wells never warned Brady that an adverse inference or any
other penalty could result from a refusal to produce personal communications on the
advice of counsel.

77.

After the Wells Report was released, Commissioner Goodell publicly

praiseditsfindingsandwork. NFLPAEx. 157 at7. By doingso,hemadeitimpossible
to serve as arbitrator in any proceeding challenging the conclusions ofthe Wells Report.
And. unsurprisingly, his eventual Award declared the Wells Report unassailable in every
resDect.

4.

Goodell Improperly Delegates

IIis

Exclusive Conduct

Detrimental Disciplinary Authority to Vincent

78.

Commissioner Goodell announced

to the world that he had decided to

delegate to Vincent the job of determining the discipline for Brady. NFLPA Ex. 185 at 4.

He did so without citing any authority under tlre CBA for such a delegation.

79.

On May

lI,

2015, Vincent imposed a four-game suspension on Brady.

NFLPA Ex. 10. He did so based solely on the Wells Report finding that Brady was
"generally aware" of the alleged ball deflation. Id. at 7. The letter confrms that Vincent
and the

NFL conducted no factual review oftheir own.

80.

Vincent also advised Brady that his discipline was being imposed in part

for his alleged "failure to cooperate" with the Wells-Pash Investigation. Id.

5.
81.

Brady Appeals His Suspension and Moves for Goodell's Recusal

On May 14, 2015, Brady and the NFLPA appealed the unprecedented

suspension levied by Vincent. NFLPA Ex.

11. In filing the appeal, the NFLPA

and

Brady objected to Goodell or his designees serving as arbitrator, explaining "that neither
Commissioner Goodell nor anyone with close ties to the NFL c[ould] serve as arbitrator

in Brady's appeal under goveming legal

standardso' because, among other things, the

improper delegation conduct of Goodell himself was going to be at issue, and testimony

fiom Goodell and Vincent would be required to adjudicate this critical point. Id. at2-3.

82.
appointment

After receiving no

response

from the League to their request for

of a neutral arbitrator, and after media reports indicated that Goodell

27

intended

to serye as the Hearing Officer, the NFLPA and Brady formally moved for

Goodell's recusal. NFLPA Ex. 157.

83.

On June 2,2A15, Goodell denied the recusal motion. NFLPA Ex. 160.

Moreover, he peremptorily declared in that same ruling that he was rejecting Brady's
improper delegation argument based on the Commissioner's own recitation of the facts
and his conclusion that his own conduct was permitted by the

CBA' Id. Al1 of this

happened without any discovery or even a hearing.

84.

Goodell never gave the NFLPA or Brady any opportunity to challenge the

purported'facf'that he'odid not delegate [his] disciplinary authority to Mr. Vincenf'and

that, allegedly, Goodell merely "concurred
authorized fVincent]

to

communicate

in

[Vincent's] recommendation

to Mr. Brady the discipline

[Goodell's] authority as Commissioner."

Id.

and

imposed under

Nor did Goodell hear Brady or the Union

on any other aspect of this issue. He just rejected the argument out of hand without any
evidence.

6.
85.
hearing.

See

The Arbitration Before Commissioner Goodell

On June 23,2015, Commissioner Goodell presided over Brady's arbitration

NFLPA Ex. 204 (transcript of proceedings). Prior to the hearing, Goodell

stated that he "lookfed] forward

to hearing directly from Tom. If there [was] new

information or there [was] information in helping [the NFL] get this right, [he] want[ed]

to hear directly from Tom on that." NFLPA Ex.

l9l

Brady complied, not only by testiffing for hours

(IIr'g Tr. 47:17-148:.7), but also by

28

at3478: NFLPA Ex. 160 at 3.

producing new evidence demonstrating that each purported basis for his discipline was
without any basis.

86.

For example, Brady refuted the Wells Report's conclusion that

it

was

"more probable than not that Brady was at least generally aware" of the alleged
misconduct. Brady testified-under oath-that he knew nothing about anyone deflating
footballs in the AFC Championship Game or any other game he played
50:27-51:16, 75:4-25,

in.

Hr'g Tr.

95:12-97;ll. Further, he went through all of the text

communications cited with reference to him in the Wells Report in order to demonstrate

that not a single one indicated he had knowledge of ball tampering.
9

1

Id. 6l;18-63:16'

:.10-96:7, I40 :9 -141 :19.

87.

In addition, the hearing confirmed that only three witnesses interviewed by

League investigators could address whether Brady was "generally aware"
tampering (McNally, Jastremski, and Brady), and that each

of

of

ball

these individuals

categorically denied Brady's knowledge of any tampering.

88.

Brady also showed that the Wells Report had improperly concluded that

Brady's involvement, in 20a6, in efforts to change a League rule to allow a visiting team
to prepare its own footballs evidenced his knowledge or concern about the pressure level

of game balls. NFI-PA Ex. 7, Wells Report at 129. Brady produced a copy of the rulechange petition itself, as well as the competition committee report on the change, which
has nothing to do with PSI levels. ,See NFLPA Ex. 203.

89.

Brady further demonstrated that he had not been withholding any

incriminating evidence. Brady produced

all of the responsive

e-mails within his

possession, along

with his phone records, showing all of his phone calls and text

messages during the relevant time period. NFLPA Exs. 1-3. Not one email was relevant

to, much less evidence of, deflation. Moreover, consistent with what Brady had told NFL
investigators and testified at the arbitration, Brady's phone records demonstrated that he
had never had a single phone call or text message with

McNally.

See

Hr'g Tr. 81:21-

8217, 139:.19-140:8 (Brady) (explaining that he did not know or communicate with

McNally); see also NFLPA Ex.

I

(reflecting no phone communication with McNally).

Further, the phone records demonstrated that virtually all of Brady's communications

with Jastremski during the relevant time period were already cited by Wells in his Repod,
because Wells had taken possession

of Jastremski's phone. See NFLPA Ex. 7, Wells

Report at 30 n.5.

90.

At the hearing Brady explained that it was impossible to produce his past

text messages because of his regular and long-standing practice of recycling phones in
order to protect his family's and friends' privacy. FIr'g Tr. 87:7-88:6,90:ll-91:9. This

is what Goodell cynically refers to in the Award as Brady "destroying" his phones (an
accusation that was not a basis for the discipline imposed by Vincent). In any event, the

hearing established-through Brady's phone records, testimony, and the absence ofany

NFL evidence to the contrary-that virtually all of the communications between Brady
and Jastremski are discussed in the Wells Report, confirming that Paul, Weiss already
had those text messages from other sources. NFLPA Ex.

3.

For the few communications

with Jastremski reflected on Brady's phone records but not referenced in the Wells
Report, that is presumably because those communications are irrelevant, and Brady

testified that such communications had nothing to do with the alleged ball tampering, and
no incriminating documents were witiheld. I-Ir'g Tr. 85:13-86:1, 140;9-741:19. Indeed,

the Wells Report confirms that the NFL had full access to the phones ftom Jastremski
and Schoenfeld so that any text messages from Brady would have been available to the

NFL from those sources. NFLPA Ex. 7, Wells Report at 30 n.5. As for McNally'
Brady's phone records confirm they had no text or email or other phone communications.
The shrill emphasis placed by Goodell on Brady discarding an old phone is an attempt to

obfuscate and divert attention from the glaring flaws
process. It is much ado about

a red

in the Award and

arbitration

herring and had no adverse impact on the Wells-Pash

lnvestigation whatsoever.

91.

In addition, Brady presented the declaration of Patriots owner Robert Krafto

attesting to Brady's credibility in denying any awareness of ball tampering.

92.

The hearing was also filled with numerous admissions about the NFL's

lack of procedures to record the necessary information to determine whether the drop in
pressure measured in Patriots balls by halftime was caused by environmental factors or

tampering. Exponent, the League's expert consultants who analyzed the results of the
halftime testing, admitted to this lack of essential information in its own report. Ex. 8,
Exponent Report at 2.

93.

The NFLPA and Brady also presented the testimony of Dr. Edward A.

Snyder, Dean of the Yale School of Management, an expert on statistics, who had led a

team

of

experts affiliated with the Analysis Group in reviewing Exponent's work and

studying the testing data from the AFC Championship Game. As Dean Snyder and the

3t

Analysis Group demonstrated, the failure of the NFL to collect the proper data made it
impossible

for

anyone

to draw reliable conclusions based on the recorded PSI

measurements. In fact, substituting even a few of the NFL's legions of assumptions with

plausible altematives tumed the Wells Report's and Exponent's conclusions on their

head. Id. 158:11-159:17, 779:15-23, 183:L6-23, 194:.l-13 (Snyder). Dean Snyder thus
established that there was no basis for the NFL to

reliably-or fairly-conclude that the

Patriots balls were tampered with, let alone that Brady was 'ogenerally aware" of such
tampering.

94.

Finally, a// witnesses at the hearing agreed that the Competitive Integrity

Policy does not apply to playerso that there was no notice of (or precedent for)

a

disciplinary standard of "general awareness" rmder any NFL policy, that no player in the
history ofthe NFL had ever been disciplined for ball tampering, and that no player in the
history ofthe NFL had ever served a suspension for an alleged lack of cooperation with a
League investigation.

E. TITE COMMISSIONER

ISSUES

THE AWARD

AFF'IRMING

BRADY'S SUSPENSION

95.

On July 28, 2015, Commissioner Goodell issued the Award upholding

Brady's discipline in its entirety. The Award is self-effectuating.

96.
shopping by

Despite this fact, the NFL engaged

filing-virtually

in

attempted preemptive forum

simultaneously with the issuance of the Award (the timing

of which was unknown to the Union and Brady)-a proceeding to confirm the award in
the Southern District of New

York.

The League knew that the central notice issues the

)z

Union had raised in the arbitration were directly related to the Peterson proceedings
pending before this Court and yet deliberately sought to avoid review by this Court.

97.

The next day, the NFLPA and Brady filed this Petition and will shortly

hereafter file a Motion for Preliminary Injunction, or in the Altemative, for Expedited

Disposition, seeking to have Brady's suspension enjoined prior to September 4,201'5 in
order to prevent him from suffering severe and irreparable harm from the loss of regular
season games due to his unlawful suspension.

GROUNDS TO SET ASIDE THE AWARI)

I.

THE AWARD VIOLATES THE ESSENCE OF THE CBA AS SET F'ORTH
IN THE LAW OF'THE SHOP REQUIREMENT OFNOTTCE

98.

In affirming Brady's discipline, the Award disregards the CBA law of the

shop requirement that players receive notice of potential discipline for the following
separate and independent reasons.

A.

Brady Had No Notice That a Player Could Be Disciplined for Mere

99.

As Vincent's discipline letter

*General Awareness" of Another Personns Conduct

states, Brady was suspended

for

being

"generally aware of the actions of the Patriots employees involved in the deflation of the

footballs"-not for any alleged ball deflation committed or directed or even authorized
by Brady himself. NFLPA Ex. l0; NFLPA Ex. 7, Wells Report at 2 ("Brady . . . was at
least generally aware of the inappropriate activities of McNally and Jastremski.").

100. Yet no NFL policy or

precedent notifies players that they might be

disciplined for general awareness of misconduct by other people. For example, no player

J.]

oogenerally aware" that another player
in NFL history has ever been suspended for being

was taking steroids or committing any other type of policy violation.

l0l.

Ratheq recent precedent confirms that the NFL has historically refrained

from disciplining players for being "generally aware" of alleged conduct detrimental by
others. For example, in the New Orleans Saints Bounty case, Goodell did not discipline
the entire Saints defense where they would all have been "generally aware" of the alleged

"bounty" program. Instead, Goodetl only imposed discipline on four Saints defenders
based

on their specifically alleged participation in the program-and even those

suspensions were subsequently vacated by Commissioner Tagliabue because of; among
other things, lack of adequate notice. NFLPA Ex. I 13, Bounty,slip op. at 3, 6, 13-1 5, 1 8.

102. Similarly, in the Richie lncognito bullying investigation

conducted by

Wells and Paul, Weiss, Wells concluded that several members of the Miami Dolphins'
offensive line were generally aware

of Incognito's bullying of

teammate Jonathan

Martin-conduct held detrimental to the League.5 Yeto consistent with every situation in
NFL history other than Brady's, none of these other players were disciplined for

oogeneral

awareness" of Incognito's alleged misconduct.

See NFLPA Ex. 206, Miami Dolphins Investigative Report at 3 ("Martin was indeed
harassed by Incogrrito, who can fairly be described as the main instigator, and by Jerry
5

and Pouncey, who tended to follow lncognito's lead."); id. at 32 ("A few offensive
linemen, however, said that Martin was bothered, especially by the taunts about his
sister."); id. at 72-73 ("One player, whom we found credible, said that Locogtito and
others routinely mocked Martin's sister and described the taunting as 'an everyday
constant thing."').

34

103. Even the NFL's Game and Field Equipment Policy

("Equipment

Policy")-which is incorporated into the NFL's Policy Manual for Member Clubs-Game
Operations ("Game Operations Manual") and

is not provided to, nor applicable

to,

players-sets forth the standard for imposing discipline for ball tampering and makes
clear that a player cannot be disciplined for general awareness of an infraction.

104. The application to Brady of an

unprecedented "general awareness"

disciplinary standard-pulled from whole cloth without waming-warrants vacating the
Award.

B.

Under the Collectively Bargained Player Policieso Brady Had Notice
Only of Fines-Not Suspensions--For Equipment Violations Designed
to Gain a Competitive Advantage

105.

As the Award concedes, "no player may have been suspended before for

tampering with game footballs." NFLPA Ex. 210, Award at 14.

106.

This is because the Player Policies actually given out and made applicable

to players provide only for

specified, collectively bargained Jines

for

equipment

violations, including those aimed at obtaining a competitive advantage. For example, the
Player Policies provide that "[a] player may not use unauthorized foreign substances
(e.g., stickum or slippery compounds) on his body or uniform

...

[and that] such a

violation affects the integrity of the competition and can give a team an unfair advantage

..

."

NFLPA Ex.

subject to a fine

ll4

.

at 15. First-time offenders of this player rule, however, are only

of 58,268. Id. at 20. The Player Policies also contain a oocatchall"

provision for "Other Uniform/Equipment Violations." Id. at

35

15.

First-time player

offenders of this provision are only subject to a fine of $5,512. Id. at
separato category

lA7.

20. There is no

ofviolation specified for ball deflation in these policies.

These Players Policies,

with their collectively bargained fines, do not

provide for any suspensions despite the fact that violations of these Policies can be
"conduct detrimental" to the integrity of the game.

108.

Vincent apparently chose not to apply the Player Policies to Brady because

a fine would not have quenched other NFL owners' thirst for a more draconian penalty.

But the NFL was not at liberty to disregard the specified and collectively bargained
penalties in the Player Policies for which players have notice. No other penalty or policy
applicable to players for equipment violations involving competitive advantage was ever
provided to Brady or any other player,

C.

Brady Had No Notice of the Policy Under Which He llas Disciplined

109.

Instead of applying the Player Policies, Vincent punished Brady pursuant

to, and for being generally aware of, violations of the Competitive Integrity Policy, which

like the Equipment Policy-is only incorporated into the Game Operations Manual and

provided only

to

teams and team executives. Indeed, the Award specifically

acknowledges that this Policy "imposes certification and reporting requirements on clubs
and senior club executives."

110. Accordingly,

Award at 17 n.19.
Brady testified that he has no recollection of ever seeing or

receiving the Competitive Integrity Policy. Id. 98:8-99:15 (Brady). And, although the

Wells Report states on its face that the investigation was conducted pursuant to the
Competitive Integrfy Policy (NFLPA Ex. 7, Wells Report at l), there is no evidence that

-to

Wells bothered to investigated whether the Competitive Integrity Policy was given to
players.

lll.

Because the Competitive Integrity Policy has never been given to players,

no player in NFL history has ever been disciplined---or even investigated-for violating
this Policy, let alone for being generally aware of someone else's violation of this Policy.
Rather, only Clubs and Club personnel have been subject to discipline tlereunder. For
example, in 2009, the NFL suspended a member of the New York Jets equipment staff

after he "attempted to use unapproved equipment to prep the K[icking] Balls prior to" a
Jets game against the New England Patriots. NFLPA

Ex.209 at

l.

According to the

NFL in imposing the discipline, the equipment personnel's"attempt to use unapproved
materials to prep the Klicking] Balls could [have] easily be[en] interpreted as an attempt

to gain a competitive advantage." 1d. However, the Jets' |icker-the player who could
ooattempt
to gain a competitive advantage"
have benefitted from the alleged

not investigated, let alone disciplined.

tlr'g Tr. 25A:7-12 (Vincent).

(id.)-was

This was perfectly

consistent with the Competitive Integrity Policy's application to Clubs, not players, as

well as the fact that even if the Jets kicker was "generally aware" of the infraction,
general awareness is not a basis for discipline.6

ll2.

The only other two incidents conceming potential ball tampering in recent

years similarly resulted in no player investigation or player discipline. On November 30,

6 The Award states that "[t]here was no evidence of any player involvement" in this
situation, NFLPA Ex.2lO, Award at 15, but fails to acknowledge that there was also no
League investigation of any player involvement.

37

2014, during a game between the Minnesota Vikings and Carolina Panthers, ball boys
were caught on national television using heaters to warm Vikings footballs in sub-zero
temperatures, Le., tampering with the balls. NFLPA Ex. 174. The NFL sent a waming ta

the CIub and publicly stated that Clubs "can't do anything with the footballs in terms

of

any artificial [sic], whether you're heating them up, whether it's a regular game ball or

kicking ball, you can't do anything to the football;' Id. at 1; NFLPA Ex. 175. No
Vikings players were either investigated or punished. This too was consistent with the
Competitive Integnty Policy's application

to Clubs and the lack of any

oogeneral

awareness" disciplinary standard.T

113. Additionally,

on that same day during the 2014 season, Green Bay Packers

quarterback Aaron Rodgers stated publicly that he "like[s] to push the limit to how much

air we can put in the football, even go over what they allow you to do and see

officials take air out of

it."

if

the

NFLPA Ex. 177. Despite this public statement, no

investigation or punishment of Rodgers ensued.

ll4.

Having no response to the defects in notice, Goodell brazenly asserts in his

Award that "[t]he fCompetitive Integrity] Policy was not the source or the basis for the
discipline imposed here." NFLPA Ex. 210, Award at 17 n.19. That claim is belied by
the undisputed arbitration record and is a post hoc argument that even the NFL's own

7 Similar to the Jets incident, the Award disingenuously states that "[t]here was no
evidence of any intentional attempt to violate or circumvent the rules, no player
involvement, and no effort to conceal the ball attendant's conduct." NFLPA Ex. 210,
Award at 15. But, again, there was no investigation of player conduct and it is selfevident that the Vikings Quarterback would have been 'ogenerally aware" that the balls
felt warm despite the frigid cold.

38

lawyers did not make at the arbitration hearing, More fundamentally, however,

nothing to

justi$ the lack of notice.

pursuant to no

it

does

Punishing Brady with a four-game suspension

policy-when the Player Policies cover the very subject of equipment

tampering and only provide for a small
bait-and-switch that this Court found

fine-is

exactly the type of lack of notice and

to be contrary to the essence of the CBA in

Peterson.

115. At

bottom, there is not a single NFL Policy or precedent that ever gave

Brady any notice that a player could be suspended for any equipment violation, let alone
general awareness of such a violation by others.

D.

Brady Had No Nofice That a Player Could Be Suspended for a Failure
to Cooperate

t16.

No player suspension in NFL history has been sustained for an alleged

failure to cooperate with any NFL investigation. The Award acknowledges this, too.
NFLPA Ex.2l0, Award at 14. Rather, before Brady, players had been subject only to
limited fines for supposed non-cooperation.

ll7.

For example, Goodell merely fined former NFL quarterback Brett Favre

o\ras not candid in several respects during
the INFL's
$50,000 after finding that Favre

sexual harassmentl investigation." NFLPA Ex. 170, Favre fined $50,000

for lack of

cooperation in inve stigation.
t

18.

Two years later, faced with a public relations disaster in "Bounty-gate,"

Goodell made an about-face ando for the

frst time in NFL history, tried to suspend a

player for non-cooperation.. Specifically, he suspended former New Orleans Saints

39

player Anthony Hargrove for allegedly obstructing the League's investigation into the

Saints' bounty program. Former Commissioner Tagliabue, serving as arbitrator,
resoundingly rejected Goodell's oveneaching, holding that suspending a player for noncooperation defied the CBA requirement ofnotice ofdiscipline:

ln December 2010, the NFL fined Brett Fawe $50,000-but
did not suspend him-for obstruction of a League sexual
harassment investigation, Although not entirely comparable
to the present matter, this illustrates the NFL's practice of
hning, not suspending players, for serious violations of this
type. There is no evidence ofa record af past suspensions
based purely on obstructing a League investigation In my
forty years of ossociation willt the NFL, I om awate of many
inslances of denials in disciplinary proceedings that proved
to be false, but I cannot recall any saspension for such
fabfication. There is na evidence of a record af past
suspensions based pwely on obstructing a League
investigation.
NFLPA Ex. l13, Bountyo slip op. at 13 (emphasis added). Perhaps no one has a broader
perspective on the NFL's disciplinary history than Commissioner Tagliabue, and in his

"forty years of association with the NFL," he could not recall arry suspension based on
non-cooperation or obstruction. Id.

119.

Moreover, although the Competitive Integrity Policy imposes a duty upon

Clubs to cooperate with investigations under that Policy (NFLPA Ex. 115 at A3), as set

forth above, the Policy does not apply to players and makes no reference to suspensions
for Policy violations, let alone for failures to cooperate in investigations under the Policy.

Id. at A2. This lack of notice stands in contrast to the notice players do receive that they
might be fined (not suspended) for failing to cooperate with investigations under the NFL

40

Personal Conduct Policy, which is provided to players as part of the Player Policies. See

NFLPA Ex. 125, Personal Conduct Policy at 4.

DA. If all of this were not enough, the arbitration record also indisputably
establishes that no

one-not Wells or anyone else-notified Brady that he could

be

punished for declining to produce his personal communications on his personal device to

the NFL's outside law

firm,

This undisputed evidence eviscerates Goodell's futile

attempt-in his Award-to distinguish Brady's alleged non-cooperation from that of
other players who were merely fined. The undisputed fact is that Brady had no notice he

could be suspended for following his agent-lawyers' advice and not tuming over his
private communications on his penonal phone to the NFL's outside law firm.

121. Although the absence of notice is dispositive, it
testified that

if

bears mention that Brady

anyone had notified him that he could be suspended for failing to turn

over his elechonic communications, he would have done so notwithstanding his agent-

lawyers' advice. Id. 86:16-20 @rady).

122. The disciplinary

consequence

of Brady's decision not to produce his

personal communications camot be overstated. The Award sustains Wells' adverse
inference about the underlying conduct, l'.e.' Brady's purported general awareness

of

inappropriate conduct by others, based on Brady's failure to produce documents. Id.

304:9-305:14. The upshot-as the Award lays bare-is that the improper adverse
inference based upon Brady's purported lack of cooperation infected the entirety of the

suspension-yet the CBA requirement of notice precludes azy suspension on the noncooperation

ground. Finally, the Award's vitriol over Brady discarding his
41

phone

pursuant to his long-standing practice has no legal significance as the discipline itself was

not based on this at all and the Arbitrator's authority, as this Coud held

n

Peterson, is

only to review the discipline actually imposed. Peterson, slip op. at 14-16.

II.

THE AWARD ALSO VIOLATES TITE ESSENCE OF THE CBA BECAUSE
THE LAW OF THE SHOP REQUIRES FAIR AND CONSISTENT
TREATMENT

123. The Wells Report concluded-based on the work of Exponent,

the

League's scientific and statistical consultants-that the purported "absence of a credible

scientific explanation for the Patriots [footballs] halftime measurements tends to support

a finding that human intervention may account for the additional loss of
exhibited by the Patriots

pressure

balls." NFLPA Ex. 7, Wells Report at 13. In his

Award,

Goodell panots Wells to reach the same exact conclusion. NFLPA Ex. 210, Award at 6.

124.

But imposing a four-game suspension and tamishing the legacy of an iconic

NFL player on the basis of concededly unreliable evidence is not "fair and consistent"
and therefore contravenes the CBA law of the shop.

125. It is undisputed that,

prior to the AFC Championship Game, the League had

no collection and testing procedures for assessing changes in football pressure. As a
consequence,

the officials did not know to-and therefore did not-record critical

information such as the temperafure of the locker room where the footballs were tested,

the specific gauge used to conduct the testing (here, multiple gauges were used with
diflerent calibrations), whether each of the balls was wet or dry (and how wet or dry), or
the sequence or timing of the measurements (which was critical, as the balls heated up
inside the room but were each measured at different times).

42

I

126. Indee4 the NFL announced three days ago-long

after the conclusion

the AFC Championship Game and the Wells-Pash InvestigationJhat
implementing procedures for testing the pressure of footballs.s

of

it is finally

It is hard to imagine a

starker concession about the incurable flaws in the NFL's collection of, and study of, data

conceming ball deflation at the AFC Championship Game.
127

.

Even the pressure at which the Patriots and Colts footballs began the game

is not reliably known, The Wells Report found that although Referee Walt Anderson
tested both teams' balls before the game, he failed to record the PSI measurements or

which of his two gauges he used to test and set the footballs-a distinction with a
significant difference because the gauges measured PSI materially differently. Drawing
conclusions based on the halftime measurements is rendered even less reliable by the fact
that Wells and Exponent decided to assume the opposite of what Referee Anderson stated

was his o'best recollection" of which gauge he used, despite accepting at face value
everything else that Anderson had told the League's investigators. See, e.g., NFLPA Ex.
7, Wells Report at 5l-52; NFLPA Ex. 8, Exponent Report at 2.

128. The

undisputed reason for this failure

testing was that, prior

to the

to

conduct proper ball pressure

Wells-Pash lnvestigation, League officials had no

understanding of the Ideal Gas Law and the fact that balls would naturally deflate when

taken from a wann, dry locker room to a cold, wet

field. For this reason, the various

Pereira: NFL informs fficials of new procedures for game Dal/s, FoxSports.com
(July 26, 2015), http://www.foxsports.com/nIVstory/deflategate-new-england-patriotsmike-pereira-changes-to-game-balls-0726 I 5?vid4929920 67 892.
8

See

43

factors that impact natural deflation-such as timing and temperafure and wetness-were
not recorded. Id. 288:17 -289: 16 (Wells).

129.

Dean Snyder, retained by the NFLPA and Brady, testified that when even a

few of Exponent's assumptions were replaced with plausible altematives, the purported
evidence of tampering disappears. See, e.g.,

194l-13,

id.

158:.11-159:.17, 179;15-23, 183:16-23,

There was no basis for anyone to make a reliable conclusion based on the PSI

measurements about whether

the observed deflation was due to natural causes or

tampering. As Dean Snyder testified: "Itos important for me as a researcher and evaluator

of data when I

see alternatives,

ifthe findings change, then the results are not reliable. . . .

When I evaluate alternative assumptions, their findings change, so the bottom line is their
results are simply not reliable." ld.757:70-158:16.

130.

Even the Wells Report acknowledges that Exponent's work is inherently

unreliable: oo[W]e are mindful that the analyses performed by our scientific consultants
necessarily rely on reasoned assumptions and that varying the applicable assumptions can
have a material impact on the ultimate conclusions.o' NFLPA Ex. 7, Wells Report at 13.

Incredibly, Goodell's Award contains no such qualification, failing to recognize the
limited probative value of Exponent's work, which even Wells acknowledged. NFLPA
Ex. 210. Award at 6-7.

131. For

Goodell to sustain unprecedented discipline on admittedly unreliable

conclusions resting on mountains of unsupported assumptions-because the NFL failed

to collect or record the necessary data-is not fair or consistent and is thus contrary to the

law of the shop. Only when proper procedures for testing are implemented can the

League make fair and consistent disciplinary determinations about the causes

of ball

deflation.

IIL

TIIE AWARD IS THE PRODUCT OF A FUNDAMENTALLY UNF'AIR
APPEAL PROCEEDING

A.

Goodell Summarily Denies the {'Improper Delegationo' Ground
Appeal Without Any Fair Process

132.

Under the CBA, the Commissioner has the exclasive authority to impose

for

conduct detrimental discipline on NFL players. NFLPA Ex. 107, CBA Art. 46, $ 1(a);

NFLPA Ex. 108, CBA App. A, fl 15. The NFL has zealously guarded this responsibility
as the

Commissioner's-and the Commissioner's alone-for decades.

133. Recently, however, Goodell publicly

stated

his desire to abdicate

his

disciplinary role and o'allow a new individual to make the initial [Article 46] disciplinary
decision."e That is exactly what Goodell did here. As Vincent's letter disciplining Brady
makes crystal clear, Goodell delegated to Vincent his exclusive CBA authority to impose

conduct detrimental discipline on Brady. NFLPA Ex. 10.

),34. The CBA

does not allow

this. In fact, the NFLPA

brought

a CBA

grievance against the NFL, challenging the Commissioner's unilateral decision to
delegate away his conduct detrimental powers. This grievance is pending, and the merits

of any Commissioner delegation are not before this Court. Howeveq the Commissioner's

e

NFL Commissioner Roger Goodell & EVP Jeff Pash League Meeting
Press Conference - December 10, 2014, NFL.com (Dec. 10, 2014),
http://nflcommunications.com/2014/12110/nfl-commissioner-roger-goodell-evp-jeffpashleague-meeting-press-conference-december- I 0-20 I 4/
See, e.g. See, e.g.,

45

failure to provide for fair proce&*es for adjudicating the delegation issue

forjudicial review here

135.

as

i^r

appropriate

it requires that the Award be vacated.

Improper delegation was the first ground identified in Brady's disciplinary

appeal. NFLPA Ex.

ll

at l; NFLPA Ex. 157 at 2-5. Goodell rejected it out ofhand,

before the arbitratioru with no evidentiary record, denying the NFLPA and Brady the

opportunity

to try to develop a record through

document discovery and witness

examination. See NFLPA Ex. 160; NFLPA Ex. 208, June 22 Goodell Order on
Discovery and Hearing Witnesses ("June22 Ordel').

136. In doing so, the Commissioner

not only unfaidy denied Brady the ability to

present an issue central to his appeal, Goodell simply declared as gospel his own version

of the "facts." Specifically, the Commissioner proclaimed that he

"I

did not delegate my

authority as Commissioner to determine conduct detrimental discipline." Award at

18

(recounting prior decision). He then repeats his own factual proffer in the Award as a
basis for upholding the discipline. NFLPA Ex. 210, Award at 18-19. But the purpose

of

the arbitration was for the NFLPA and Brady to challenge the League's version of the

facts-not for the Commissioner (the arbitralor) simply to assume his own conclusion.

137. Following the denial of their Recusal Motion, the NFLPA and Brady
moved to compel the testimony of Goodell and Vincent in order to develop a factual

record for Brady's improper delegation ground for appeal. NFLPA Ex. 1.66 at 2'4.
Goodell denied this motion too, stating that he had already decided that there was no
improper delegation. NFLPA Ex. 208, Jrne 22 Order.

46

138. Not only was this denial
fundamentally unfah

it

of

Brady's right

to

confront witnesses

also contravened established law of the shop precedent that an

Article 46 hearing offtcer has the duty to compel the testimony of relevant NFL
witnesses. For example, in Rice, Judge Jones compelled Goodell and other NFL
executives to testiff, so that the player and the Union could ask about their roles in the

discipline. See, e.9., NFLPA Ex. 166E, Rice Order on Discovery and Hearing Witnesses

at 2 (*Rice Discovery Order"). And, in Bounty, former Commissioner Tagliabueserving as arbitrator---compelled numerous League and Club personnel

to testiff

(including Vincent) so that the NFLPA and the four appellant Saints players would have
the ability to develop the arbitration record and to confront their accusers. NFLPA Ex.
166F, Bounty Pre-FIr'g Conference Tr.220:14-221:3; NFLPA

IIr'g Order No.

B.

Ex. 166G, Bounty Pre-

1.

Commissioner Goodell Denies the NT'LPA and Brady Equal Access to
the League's Investigative Files

139. In

both Bounty and Rice, Article 46 arbihators compelled the League to

produce the investigative files underlying its factual conclusions so that the appellant
players would have a fundamentally fair hearing. See NFLPA Ex. 166 at 6 (investigative

files ordered to be produced nthe Bounty and Rice arbitrations). This precedent became
the law of the shop.

140.

Yet, here, Goodell ignored the precedents set by Judge Jones and former

Commissioner Tagliabue and denied the Union's motion to compel production of the
investigative fies. Id. at5-6t see a/so NFLPA Ex. 159 at2-3.

47

l4l.

Although the NFL took the position that the Paul, Weiss interview notes

played no role in the disciplinary decisions, it was precisely because the Wells Report's

conclusions formed the basis for the discipline that

it was critical for Brady to have

access to the investigative files in order to challenge the underlying facts.

I42.

Compounding the fundamental unfairness was the fact that Paul,

Weiss-

which acted as defense counsel for the NFL at the arbitration-did have access to the
investigative

files.

Indeed, Paul, Weiss partner Lorin Reisner-who conducted most

of

the witness examinations at the hearing, including Brady's-was the co-lead partner in
the investigation with Wells, and he, and his team, sat at counsel table for the NFL during

the arbitration and were able to utilize the very information denied to Brady. This was a
clear violation of Brady's right to a frrndamentally fair hearing. The Award makes no
mention of the issue at all.

C.

Commissioner Goodell Refused to Compel the Testimony of Co-Lead
Investigafor JeffPash

143, Judge Jones and Commissioner Tagliabue also set CBA

precedents

conclusively establishing that players have a fundamental procedural right, in Article 46

appeal arbitrations,

to

confront the investigators whose work forms the basis for

discipline. See, e.g., NFLPA Ex. 166D, Bounty Pre-IU g Order No. 4;
166E, Rice Discovery

144.

&

c/

NFLPA Ex.

Witnesses Order at 2.

The NFL publicly declared that NFL Executive Vice President and General

Counsel Jeff Pash was the co-lead investisator on the Wells-Pash Investisation. NFLPA

48

Ex. 181 (NFL Press Release stating: "The investigation is being led jointly by NFL
Executive Vice President JeffPash and Ted Wells . . . .').

145.

Accordingly, the NFLPA and Brady moved to compel the testimony of co-

lead investigators Wells and Pash at Brady's appeal hearing (the NFL refused to
voluntarily make either witness available). NFLPA Ex. 166 at 5-6. Although Goodell
granted the NFLPA's motion to compel the testimony of Wells, NFLPA Ex. 208, June 22

Order at 2, the Commissioner denied the motion as to Pash, claiming that he did not play
a substantive

146.

role in the investigation." Award at 19 n,21.
As the Award acknowledges, howevero Wells testified that Pash reviewed a

draft of the Wells Report and provided Paul, Weiss with comments prior to the Report's

public release.

llr'g Tr. 268:77-25. Given the NFL's

claim that the Wells Report

findings were "independent," and that Pash played no substantive role

in

the

investigationo it was fundamentally unfair to deny Brady the opportunity to confront Pash

about his changes

to the Wells Report and his overall

involvement as colead

investigator.
147

.

If

Pash truly had no substantive role, then he simply could have so testified.

Of course, such testimony would beg the question of why the NFL's General Counsel
would then be editing a supposedly independent investigative report. Cognizant of this

49

dilemma, Goodell simply precluded the NFLPA and Brady

liom asking

Pash any

questions at the arbitration.lo

148.

The combination of all the actions set forth above rendered Brady's appeal

hearing a kangaroo court proceeding, bereft of fundamentally fair procedures, requiring
that the Award be set aside.

IV.

COMMISSIONER GOODELL WAS EVIDENTLY PARTIAL

I4g.

Neither the CBA nor the LMRA sanctions arbitration awards issued by

evidently partial arbitrators.

150.

Hereo as described above, a central ground

ofBrady's appeal was the issue

of Goodell improperly delegating to Vincent his exclusive authority to discipline players

for conduct detrimental to the NFL. Goodell and Vincent were thus essential fact
witnesses at the arbitrationo and any arbitrator hearing Brady's appeal would have to
consider the facts and adjudicate the legality of the Commissioner's delegation.

151. It is hard to imagine any

person in Goodell's position even affempting to

serye as arbiffator under these circumstances, but that is exactly what he

did. He denied

the NFLPA's Recusal Motion and simultaneously (and summarily) rejected

the

delegation argument-trying to pave his own path to stay on as arbitrator of Brady's

r0 The

Award states that the NFLPA has waived this argument by not seeking at the
hearing "reconsideration of [Goodell's] decision denying [the NFLPA's] motion to
compel Mr. Pash's testimony." NFLPA Ex. 210, Award at 19 n.21. This is ridiculous.
The NFLPA preserved the argument by making a formal motion to compel Pash's
testimony which Goodell denied because of Pash's purported lack of any "significant"
role-a findins undermined bv Wells' testimonv. Id.

50

appeal, This conduct shows not merely evident partiality but actual bias, rendering
Goodell unfit to serve as arbitrator under any standard.

152.

Further, prior

to serving as hearing officer, the Commissioner publicly

lauded the reliability of the Wells Report-the issue at the very heart of Brady's appeal:

I

want to express my appreciation to Ted Wells and his
colleagues for performing a thorough and independent
investigation, the findings and conclusions of which are set
forth in today's comprehensive report.

NFLPA Ex. 157 at 7 (citation omitted). Goodell's choice to make these public comments
locked him into supporting the Wells Report and rendered him incapable of reaching a
contrary conclusion in Brady's appeal" as doing so would undermine his own competency

as Commissioner. The Award itself proves this

point-it

is just a recycling of the

conclusions ofthe Wells Report as though the arbitration hearing never happened.

153. Applicable labor law and arbitral

standards simply do not permit an

arbitrator to publicly comment on the very subject matter he has been called upon to
arbitrate and to then continue to serve as arbitrator.

154.

Sports League Commissioners are not somehow above this standard. The

case law is well-established that even when a League Commissioner has specifically been

delegated to serve as arbitrator of parties' disputes, the Commissioner may not arbitrate a

particular dispute in which his own conduct and actions are called into question.

See

Morris,575 N.Y.S.2d at 1016-17 (removing NFL Commissioner as arbitrator because of
his "evident partiality and bias

. . . with respect to this specific matter"); Ewing

v.

Virginia Squires Basketball Club,349 F. Supp. 716,719 [E.D.N.Y. 1972) (disqualifling

)t

Commissioner from sitting as arbitrator due to facts of specific dispute),

affd,

468 F.2d

1064 (2d Cir. 1,972); see also State ex rel. Hewitt v. Kerr, No. SC 93846, 2015 WL
2061986, at *10 (Mo. Apr. 28, 2015) (en banc) (examining facts of case and determining

that Commissioner's 'oposition of bias" required court to remove him as arbitrator).
These courts analyzed the Commissioner's fitness to serve as arbitrator in the specific

facts of these cases and found him impermissibly evidently partial in each one despite

being designated arbitrator in the relevant arbitration provisions. The same result is
warranted here.

PRAYER FOR RELIEF'

VACATUR OF ARBITRATION AWARD

155.

The NFLPA and Brady repeat and re-allege Paragraphs l-154 as

ifset forth

tully herein.

156.

The NFLPA and Brady petition to vacate Goodell's Award.

157.

The Award must be vacated because

it fails to draw its essence ftom the

parties'CBA:
Commissioner Goodell, serving as arbitrator, disregarded the law

of

the shop and this Court's binding ruling in Peterson that the CBA

requires that NFL players have advance notice

of

potential

discipline, and
Commissioner Goodell, serving as arbitrator, disregarded the law
the shop that conduct detrimental discipline be fair and consistent.

)z

of

158.

The Award must also be vacated because Commissioner Goodell denied

Brady access to evidence and witnesses central to his appeal, and otherwise deprived
Brady of his right to a tundamentally fair hearing.

159. Finally, the Award must be set aside for the independent
circumstances

of Brady's discipline and

reason that the

appeal rendered Commissioner Goodell an

evidently partial arbitrator and the NFLPA did not agree that Goodell could serve

as

arbitrator under such circumstances.

160.

WHEREFORE, in light of the foregoing, and in accordance with Section

301 of the LMRA and Section 10 of the FAA, the NFLPA and Brady respectfully request
that the Court vacate the Award.

Dated: July

29,2015

Respecttully Submitted,

By: s/ Barbma PodlucKv Berens
BERENS

&MILLERP.A.

Barbara Podlucky Berens, #209788
3720 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Tel [phone] |
[e-mail]

WINSTON & STRAWNLLP
Jeffrey L. Kessler (pro hac vice pending)
David L. Greenspan Qtro hac vice pending)
Benjamin Sokoly
Jonathan J. Amoona
200 Park Ave.
New York, NY 10166
Tel:[phone]
Fax:.[phone]
[e-mail]
[e-mail]

53

[e-mail]
[e-mail]

NATIONAL FOOTBALL LEAGUE
PLAYERS ASSOCIATION
DeMaurice F. Smith (pro hac vice pending)
1133 20th Street. N.W.
Washington, DC 20036
Tel: [phone]
demaurice.smith@nfl players.com

Attorneysfor the NFLPA and Brady
GIBSON, DLINN & CRI,ITCHERLLP
Andrew S. Tulumello Qtro hac vice pending)
1050 Connecticut Avenue. N.W.
Washinglon, DC 20036
Tel;202-955-8657
Fax:[phone]
[e-mail]
Aftorneys

54

for Brady