I've thought about this off and on since it came down. At first, I was as inflamed as anyone else. I still am, but cooled off enough to try to understand this in a non-conspiratorial way.
First, back story. I'm a lifelong transactional lawyer who hasn't been in a courtroom (except as an expert witness) in 40 years. That puts my knowledge of litigation issues way behind DC Missile, Marciano, et al. Maybe an informed layperson, plus. So, what I tried to do is consider this imbroglio from the perspective of an observer who knew something about arbitration but had no skin in the game.
A couple of things jump out. There's deference to arbitration procedures and outcomes. True in a commercial setting, extra true in labor and employment matters. Why is the PA complaining? You cut the deal, and in the absence of a strong showing of impropriety, live with it. And strong means direct evidence, not conjecture about how the table is tilted. There's plenty of room for speculation, and Goodell and Wells made a terrible botch of it, but I can't go any further. So long as the process and outcome derived from the essence of the agreement, you’re stuck with it. (Paraphrasing the majority opinion, not expressing a view.)
Berman was inflamed by the mess Goodell created, but in reacting, he generated an outcome that was bad for the 2d Circuit and not just the NFL. I can understand how Chin and Parker concluded early on that unless they'd missed something startling in the record, they weren't going to open the door to a flood of plain vanilla arbitration awards simply because the appellant claimed nefarious behavior based on cumulative indirect evidence. In that sense, there was a strong preconception about the case, but it came from bona fide judicial concerns, especially in the 2d Circuit, which embraces so many major commercial enterprises.
The Chief felt that this was a case that went beyond the apprehended risk, it reflected behavior that shouldn't be sustained judicially. I kind of agree, but do understand where the other judges were coming from. Can you imagine having to parse through dense factual files to decide if a case met that standard? I have no idea how the Circuit will react to a motion for rehearing en banc, but could see that happening - theoretically, but the odds against it are high. If the motion is granted, I would hope the NFL would come to the table, but wouldn't bet on it.
Getting to TB: I think there was a profound lack of notice concerning exactly what behavior was in question, and consequent penalties. If I was sitting on the Circuit, I'd side with the Chief, but as I said, there are significant systemic considerations that I give credence to. Now, looking at it from an arbitrator’s perspective, several things jump out.
Start with the cell phone. Wells put Yee in a corner. He deferred to the privacy issue and simply asked Yee to redact and/or withhold personal emails, and provide the relevant emails with an undertaking that Brady/Yee had screened them. Brady refused; OK, I understand that there’s a significant employee concern when the NFL exercises unlimited oversight over personal communication devices, but then do what good lawyers also do, refuse to comply, state your legal reasons for doing so and give counsel physical custody of the device. Spoliation of evidence is bad, period, and I cannot conceive of an explanation for what TB did, unless he ignored Yee’s advice, which is possible.. As others have noted, it permits a trier of fact to draw an adverse inference, and Goodell did so. For that matter, Chin and Parker likely did also. This isn’t an equity proceeding, but if there was ever a case where the 2d Circuit would override an arbitrator, it certainly wasn’t going to do it in the face of behavior like that.
Brady’s long conversation with the Deflater also concerns me. I haven’t seen any explanation that tells me why he would spend that amount of time with him immediately after the story broke, when there is no history of phone calls between them. Again, the 2d Circuit doesn’t want to get into the weeds, given its ultimate deference to the arbitration award, but it certainly becomes a consideration when you’re being asked to sustain an extraordinary degree of judicial of Intervention into a labor-management arbitration.
This isn’t hard to understand once you take a more clinical view. If you’re going to ask a court to overturn a labor arbitrator, you better be prepared to demonstrate actual misbehavior or impropriety, and you’d better come in with clean hands. This is obviously bad for Brady. It’s also bad for the other owners. Be careful what you wish for, it will come with unanticipated consequences. One can only hope.
One or two additional thoughts. Kraft folded like a wet paper box. I don't know what Roger was blowing in his ear, and maybe this just reflects Bob's desperate desire to remain at the big boys table, but that removed any possible impediment to Goodell doing what he wanted to do. I cannot for the life of me figure out why the Patriots were penalized for alleged behavior in which they had no involvement, but Kraft rolled over. Jonathan’s succession to CEO can’t come any too soon for me. He may be a prick, but he’s living in a jungle that’s full of them.
