nfl deflategate appeal

15-2801(L) 15-2805, 15-3228 (Con)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

________________ NATIONAL FOOTBALL LEAGUE MANAGEMENT COUNCIL,

Plaintiff-Counter-Defendant-Appellant,

and NATIONAL FOOTBALL LEAGUE,

Defendant-Appellant, and

MICHELLE MCGUIRK, Appellant,

v. NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION,

on its own behalf and on behalf of Tom Brady, Defendant-Counter-Claimant-Appellee,

and TOM BRADY,

Counter-Claimant-Appellee. ________________

On Appeal from the United States District Court for the Southern District of New York, Nos. 15-5916, 15-5982

________________

BRIEF FOR APPELLANTS ________________

[cover continued on next page]

Case 15-3228, Document 9-1, 10/26/2015, 1628099, Page1 of 70

DANIEL L. NASH PRATIK A. SHAH STACEY R. EISENSTEIN GREGORY W. KNOPP JAMES E. TYSSE AKIN GUMP STRAUSS HAUER & FELD LLP 1333 New Hampshire Avenue, NW Washington, DC 20036 (202) 887-4000

PAUL D. CLEMENT ERIN E. MURPHY MICHAEL H. MCGINLEY BANCROFT PLLC 500 New Jersey Avenue, NW Seventh Floor Washington, DC 20001 (202) 234-0090 [email protected]

Counsel for Appellants National Football League Management Council and National Football League

October 26, 2015


i

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Appellants state the

following:

The National Football League (“NFL” or “League”) is an unincorporated

association of 32 member clubs organized under the laws of New York. The National

Football League Management Council (“Management Council”), the sole and

exclusive collective bargaining representative of the NFL member clubs, is an

unincorporated association made up of the NFL member clubs. The member clubs

of the NFL and the Management Council are:

CLUBS ENTITIES

Arizona Cardinals Arizona Cardinals Football Club LLC; Arizona Cardinals Holding Company LLC

Atlanta Falcons Atlanta Falcons Football Club, LLC

Baltimore Ravens Baltimore Ravens Limited Partnership; Baltimore Football Company LLC (general partner)

Buffalo Bills Buffalo Bills, Inc. Carolina Panthers Panthers Football, LLC; P.F.F., Inc. (general partner) Chicago Bears The Chicago Bears Football Club, Inc. Cincinnati Bengals Cincinnati Bengals, Inc. Cleveland Browns Cleveland Browns Football Company LLC Dallas Cowboys Dallas Cowboys Football Club, Ltd.; JWJ Corporation

(general partner)Denver Broncos PDB Sports, Ltd. d/b/a Denver Broncos

Football Club; Bowlen Sports, Inc. (general partner)

Detroit Lions The Detroit Lions, Inc. Green Bay Packers Green Bay Packers, Inc. Houston Texans Houston NFL Holdings, L.P.; RCM Sports and

Leisure, L.P. (general partner); Houston NFL


ii

CLUBS ENTITIES

Holdings G.P., L.L.C. (general partner of RCM Sports)

Indianapolis Colts Indianapolis Colts, Inc. Jacksonville Jaguars Jacksonville Jaguars, LLC; TDJ Football, Ltd.

(general partner); Dar Group Investments, Inc. (general partner of TDJ Football)

Kansas City Chiefs Kansas City Chiefs Football Club, Inc. Miami Dolphins Miami Dolphins, Ltd.; South Florida Football

Corporation (general partner)

Minnesota Vikings Minnesota Vikings Football, LLC New England Patriots New England Patriots LLC New Orleans Saints New Orleans Louisiana Saints, L.L.C.; Benson

Football, Inc. (general partner)New York Giants New York Football Giants, Inc. New York Jets New York Jets LLC Oakland Raiders The Oakland Raiders; A.D. Football, Inc. (general

partner) Philadelphia Eagles Philadelphia Eagles, LLC Pittsburgh Steelers Pittsburgh Steelers LLC St. Louis Rams The St. Louis Rams, LLC San Diego Chargers Chargers Football Company, LLC; Alex G. Spanos

(general partner)San Francisco 49ers Forty Niners Football Company LLC; San Francisco

Forty Niners, LLC (general partner) Seattle Seahawks Football Northwest LLC Tampa Bay Buccaneers

Buccaneers Limited Partnership; Tampa Bay Broadcasting, Inc. (general partner)

Tennessee Titans Tennessee Football, Inc.; Cumberland Football Management, Inc. (general partner)

Washington Redskins Pro-Football, Inc.

No publicly held corporation owns 10 percent or more of any of the above-

listed entities’ stock.


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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT .......................................................... i

TABLE OF AUTHORITIES ..................................................................................... v

INTRODUCTION .................................................................................................... 1

JURISDICTION ........................................................................................................ 3

STATEMENT OF THE ISSUES .............................................................................. 3

STATEMENT OF THE CASE AND FACTS ........................................................... 3

A. The Labor Management Relations Act ................................................ 4

B. The Parties’ CBA .................................................................................. 4

C. Brady’s Misconduct and the Subsequent Investigation ....................... 9

D. Brady’s Discipline and Arbitration Hearing ....................................... 13

E. The Commissioner’s Final Decision .................................................. 17

F. Proceedings Below ............................................................................. 21

SUMMARY OF ARGUMENT ............................................................................... 26

STANDARDS OF REVIEW .................................................................................. 29

ARGUMENT .......................................................................................................... 29

I. The Commissioner’s Arbitration Award Must Be Enforced ........................ 29

A. Judicial Review of a Labor Arbitration Award is Extremely Limited Under the Labor Management Relations Act ....................... 30

B. The Commissioner’s Award Easily Satisfies the LMRA ................... 33

1. The district court fundamentally failed to apply the correct legal standard ............................................................... 34

2. The district court’s fair notice concerns were misplaced ................................................................................. 37


iv

3. The district court was wrong to second-guess the Commissioner’s application of his Article 46 authority .......... 41

II. The Commissioner’s Procedural Rulings Provide No Basis For Vacating His Final Decision ......................................................................... 46

A. The District Court Had No Authority—And No Grounds—To Second-Guess the Commissioner’s Evidentiary Ruling .................... 47

B. The District Court Had No Authority—And No Grounds—To Second-Guess the Commissioner’s Discovery Ruling ...................... 51

III. This Court Should Order Enforcement Of The Commissioner’s Award ............................................................................................................ 54

CONCLUSION ....................................................................................................... 59

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE


v

TABLE OF AUTHORITIES

Cases

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) .............................................................................................. 34

Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv., 754 F.3d 109 (2d Cir. 2014) ................................................................... 33, 49, 53

Andros Compania Maritima, S.A. v. Marc Rich & Co., 579 F.2d 691 (2d Cir. 1978) ......................................................................... 30, 35

AT&T Techs., Inc. v. Communications Workers, 475 U.S. 643 (1986) ............................................................................................ 46

Aviall, Inc. v. Ryder System, Inc., 110 F.3d 892 (2d Cir. 1997) ................................................................................ 57

Bacolitsas v. 86th & 3rd Owner, LLC, 702 F.3d 673 (2d Cir. 2012) ................................................................................ 58

Booking v. General Star Management Co., 254 F.3d 414 (2d Cir. 2001) ................................................................................ 58

Charles O. Finley & Co. v. Kuhn, 569 F.2d 527 (7th Cir. 1978) ........................................................................ 40, 41

Coca-Cola Bottling Co. v. Union Local 812, 242 F.3d 52 (2d Cir. 2001) .................................................................................. 33

Crouch v. NASCAR, Inc., 845 F.2d 397 (2d Cir. 1988) ................................................................................ 41

Eastern Associated Coal Corp. v. United Mine Workers of America, Dist. 17, 531 U.S. 57 (2000) .............................................................................................. 45

Hill v. Staten Island Zoological Society, Inc., 147 F.3d 209 (2d Cir. 1998) ................................................................................ 39

John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964) ............................................................................................ 46


vi

Local 453, Int’l Union of Elec., Radio & Mach. Workers v. Otis Elevator Co., 314 F.2d 25 (2d Cir. 1963) .................................................................................. 39

Local 97, Int’l Bhd. Of Elec. Workers, AFL-CIO v. Niagara Mohawk Power Corp., 196 F.3d 117 (2d Cir. 1999) ................................................................................ 31

Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504 (2001) ....................................................................................... 4, 32

Pa. Dep’t of Corrections v. Yeskey, 524 U.S. 206 (1998) ............................................................................................ 39

Petrosino v. Bell Atlantic, 385 F.3d 210 (2d Cir. 2004) ................................................................................ 58

Saint Mary Home v. SEIU, Dist. 1199, 116 F.3d 41 (2d Cir. 1997) .......................................................................... passim

Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960) ..................................................................................... 32, 46

Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89 (1978) .............................................................................................. 30

United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29 (1987) ...................................................................................... passim

United States v. Int’l Bhd. Of Teamsters, 954 F.2d 801 (2d Cir. 1992) ................................................................................ 34

United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960) ......................................................................... 32, 36, 38, 39

United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960) ..................................................................................... 31, 32

W.R. Grace & Co.v. Local Union 759, Int’l Union of the United Rubber, Cork, Linoleum & Plastic Workers of America, 461 U.S. 757 (1983) ..................................................................................... 44, 45


vii

Wackenhut Corp. v. Amalgamated Local 515, 126 F.3d 29 (2d Cir. 1997) .......................................................................... passim

Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200 (2d Cir. 2002) ................................................................................ 58

Williams v. National Football League, 582 F.3d 863 (8th Cir. 2009) ............................................................................... 57

Statute

29 U.S.C. §185(a) ...................................................................................................... 4

Other Authorities

Collective Bargaining Agreement between NFL and NFL Players Association (2011) ......................................................................................... 5, 51

E. Asinof, Eight Men Out (1987) ............................................................................... 6

Major League Baseball Collective Bargaining Agreement (2012) .......................... 40

National Basketball Association Collective Bargaining Agreement (2011) .................................................................................................................. 40

National Hockey League Collective Bargaining Agreement (2012) ....................... 40


INTRODUCTION

Stripped of its celebrity, this case involves a straightforward exercise of

authority expressly granted under a collective bargaining agreement (“CBA”) and

shielded from collateral attack by decades of precedent concerning labor

arbitrations. The National Football League’s collective bargaining agreement with

the NFL Players Association affords the NFL Commissioner broad authority to

impose discipline for conduct “detrimental to the integrity of, or public confidence

in, the game of professional football.” Exercising that authority, which mirrors the

broad discretion given to commissioners in other sports to ensure the integrity of the

game, the Commissioner suspended Tom Brady, quarterback on the New England

Patriots, for four games after finding that Brady had participated in a scheme to

deflate game balls to be used in a conference championship game. The scheme was

aimed at gaining an unfair competitive advantage on the field, and it was devised to

avoid detection by game officials. It struck at the heart of the game’s integrity and

the public’s confidence in the NFL’s on-field product. The Commissioner’s conduct

detrimental authority exists for incidents just like this.

Courts have long been skeptical of efforts to collaterally attack decisions that

a CBA leaves to arbitration. Supreme Court and Second Circuit precedents alike

have consistently emphasized that decisions like the Commissioner’s here are

shielded by some of the most deferential standards known to the law. Substantive


2

decisions need only be grounded in the CBA; procedural decisions need only avoid

caprice; and remedial discretion need only avoid contradicting the terms of the CBA.

Applying those long-established standards, this should not have been a close

case. The Commissioner exercised the precise authority that the CBA grants him

when considering allegations of conduct detrimental to the game. He authorized an

exhaustive investigation of the underlying conduct, which was limited only by

Brady’s failure to cooperate. He conducted an extensive arbitration proceeding that

conformed to the rules that govern those proceedings under the CBA. Not every

evidentiary or procedural ruling went in Brady’s favor, but the CBA gives the

Commissioner the authority to make those determinations and he reasonably

resolved every contested issue. The Commissioner’s ultimate determination was

elaborately reasoned and thoroughly grounded in the CBA. The district court’s

decision vacating the Commissioner’s arbitration award cannot begin to be

reconciled with the appropriate judicial standards for evaluating a collateral attack

on such an action.

In short, the Commissioner acted well within the bounds of discretion

expressly granted by the CBA, while the district court vastly exceeded the narrow

bounds of judicial review allowed under the Labor Management Relations Act and

decades of precedent. The district court’s decision cannot stand.


3

JURISDICTION

The district court had jurisdiction under 28 U.S.C. §1331 and the Labor

Management Relations Act of 1947, 29 U.S.C. §185 et seq. That court entered a

final order and judgment on September 3, 2015, and Appellants filed a timely notice

of appeal from the district court’s final order. This Court has jurisdiction over the

appeal under 28 U.S.C. §1291.

STATEMENT OF THE ISSUES

1. Whether the district court erred by vacating the Commissioner’s labor

arbitration award based on its disagreement with the Commissioner’s factual

findings and the Commissioner’s interpretation and application of the parties’

collective bargaining agreement.

2. Whether the district court erred by vacating the Commissioner’s labor

arbitration award based on its disagreement with the Commissioner’s discretionary

procedural rulings.

STATEMENT OF THE CASE AND FACTS

The National Football League and the NFL Management Council appeal from

a judgment by the United States District Court for the Southern District of New York

(Berman, J.) denying their motion to confirm the Commissioner’s arbitration award

and granting the Players Association’s motion to vacate the award. The district

court’s amended decision and order is not yet reported in the Federal Supplement

but is available at 2015 WL 5148739.


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A. The Labor Management Relations Act

This case arises from a disciplinary decision made pursuant to the parties’

CBA and thus is governed by the “extremely limited” framework of judicial review

of labor arbitration decisions under Section 301 of the Labor Management Relations

Act of 1947 (“LMRA”), 29 U.S.C. §185(a). Major League Baseball Players Ass’n

v. Garvey, 532 U.S. 504, 507 (2001) (per curiam). The LMRA was adopted to

promote labor peace, and it achieves its goal primarily by encouraging collective

bargaining and private arbitration of disputes. Since the Act’s inception, the

Supreme Court and this Circuit have insisted that federal judges resist the urge to

usurp the labor arbitrator’s role under the parties’ agreement. Any time a court

oversteps those bounds it threatens the efficacy of the congressional policy.

To avoid that harm, the federal judiciary takes an exceptionally deferential

approach to labor arbitration awards. Specifically, courts must enforce an

arbitrator’s award if it “draws its essence from the collective bargaining

agreement”—that is, so long as the arbitrator has plausibly interpreted and applied

the contract. United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S.

29, 36 (1987); Wackenhut Corp. v. Amalgamated Local 515, 126 F.3d 29, 32 (2d Cir.

1997); Saint Mary Home v. SEIU, Dist. 1199, 116 F.3d 41, 44 (2d Cir. 1997).

B. The Parties’ CBA

Consistent with federal labor policy, the NFL Management Council and the


5

NFL Players Association agreed in their CBA to settle their disputes through

arbitration and to grant the Commissioner extensive authority to arbitrate certain

disputes and to mete out discipline. The CBA, which is effective through the end of

the 2020 season, governs all aspects of the parties’ relationship. See Collective

Bargaining Agreement between NFL and NFL Players Association (2011), available

at http://bit.ly/1IThOU4. It includes 70 separate Articles and incorporates the

standard NFL Player Contract, the NFL Constitution and Bylaws, the League’s

Substance Abuse Policy, and many other documents. See id.

Among its comprehensive terms, the CBA provides for arbitration of player

grievances. The CBA’s arbitration provisions include detailed procedures for

resolving non-injury-related grievances (Article 43), injury-related grievances

(Article 44), and grievances related to “Commissioner Discipline” (Article 46). See

id. at 187-99, 204-06; JA345. The arbitration procedures vary depending on the

nature of the grievance. Both non-injury and injury grievances are heard by third-

party arbitrators “whose appointment must be accepted in writing by the NFLPA and

the Management Council.” Art. 43 §6; Art. 44 §7. By contrast, as relevant here,

Article 46 recognizes the longstanding and plenary authority of the NFL

Commissioner both to impose certain forms of discipline and to adjudicate internal

appeals of such discipline. See JA345.

For over forty years, the CBA has granted the Commissioner broad authority


6

to impose discipline, including “a fine or suspension,” on a player who engages in

“conduct detrimental to the integrity of, or public confidence in, the game of

professional football.” Id. The CBA does not define what misconduct falls within

this authority; nor does it specify any presumptive or maximum discipline for

engaging in such conduct. Instead, the parties have left the “conduct detrimental”

standard’s application to the Commissioner’s reasonable judgment, with the

expectation that he will exercise that authority in light of developments and changes

in the game over time, and they have authorized the Commissioner, upon finding

such misconduct, to suspend players “for a period certain or indefinitely.” JA353.

There is good reason for the Commissioner’s broad discretion on these

matters. The League’s success depends on its integrity and the public’s confidence

that its games are fair. The sports world—and the professional leagues, in

particular—know all too well what can come if those core values are diminished.

See, e.g., E. Asinof, Eight Men Out (1987) (detailing baseball’s Black Sox scandal).

If the public perceives the games as unfairly tilted in favor of certain players or

teams, or even susceptible to such tilts, it will cease valuing professional sports as a

paradigm of fair-play, honest effort, and healthy competition. And if players or club

owners view the game as tainted, their incentive to compete fairly will be

diminished. These matters run to the core of the sport’s continued vitality. It is thus

no surprise that the Management Council and the Players Association would both


7

want to ensure the game’s protection.

Nor is it a surprise that they would entrust that responsibility to the individual

whose job it is to manage the League. The Commissioner has no incentive to favor

one team over another; he has no incentive to favor one player over another. His

primary responsibility is to protect the game of professional football. And as the

person chiefly responsible for the League’s well-being, the Commissioner is in the

best position to assess whether and to what extent specific conduct threatens the

League’s integrity and the public’s confidence in the sport, to provide reasonable and

fair process, and to ensure appropriate levels of discipline.

The Commissioner’s authority to make those judgments is confirmed by the

NFL Constitution and Bylaws, which itself is incorporated in the CBA. That

document affords the Commissioner “complete authority” to discipline players,

including by suspending players for definite or indefinite periods. JA357. The

Constitution further “authorize[s]” the Commissioner to “take or adopt appropriate

legal action or such other steps or procedures as he deems necessary and proper in

the best interests of either the League or professional football, whenever [any NFL

player or employee] is guilty of any conduct detrimental either to the League, its

member clubs or employees, or to professional football.” JA358.

The standard NFL Player Contract, which is incorporated as Appendix A to

the CBA and signed by every player, expressly recognizes the Commissioner’s


8

plenary authority in this area. By signing that contract, each player acknowledges

“the detriment to the League and professional football that would result from

impairment of public confidence in the honest and orderly conduct of NFL games or

the integrity and good character of NFL players” from player misconduct. JA353.

And through that contract each player is expressly notified of the Commissioner’s

authority “to suspend [the] Player for a period certain or indefinitely; and/or to

terminate this contract” for conduct “reasonably judged” by the Commissioner to be

detrimental to the integrity of, or public confidence in, the game. JA353-54.

Article 46 of the CBA grants the Commissioner discretion to serve as the

arbitrator in “conduct detrimental” proceedings. Any player disciplined under

Article 46 may initiate arbitration by filing an “appeal in writing to the

Commissioner” within three business days of receiving notice of discipline, and “the

Commissioner may serve as hearing officer in any appeal ... at his discretion.”

JA345-46. Alternatively, the Commissioner, after “consultation with the Executive

Director of the NFLPA,” may “appoint one or more designees to serve as hearing

officers.” JA345. The hearing officer’s decision—whether it comes from the

Commissioner or his designee—constitutes “full, final and complete disposition of

the dispute” that is “binding” on all parties, as well as on the Management Council

and the Players Association. JA346. No further appeal or process is contemplated

or permitted.


9

C. Brady’s Misconduct and the Subsequent Investigation

Tom Brady is the starting quarterback of the New England Patriots and a 14-

year veteran of the NFL. He has led his team to six Super Bowls, has won four of

those championships, and has been named Most Valuable Player in three of the

games. His most recent Super Bowl victory and MVP award came last season.

During last season’s AFC Championship Game—the game before the Super

Bowl—it came to light that the Patriots’ footballs were deflated below the level

permitted under the League’s Official Playing Rules, which require game balls to be

inflated to between 12.5 and 13.5 pounds per square inch (“psi”). Before the game,

officials measured the Patriots’ footballs and, after inflating two that were below

12.5 psi, confirmed that they complied with the rules. But based on a complaint

from the opposing team, the Indianapolis Colts, “eleven of New England’s footballs

were tested at halftime; all were below the prescribed air pressure range as measured

on each of two gauges.” SPA44. “Four of Indianapolis’s footballs were tested at

halftime” as well, and “all were within the prescribed air pressure range on at least

one of the two gauges.” Id.

The League initiated an investigation into how the footballs came to fall below

the prescribed measurement, which resulted in a 139-page report authored by

Theodore V. Wells, Jr. of the law firm Paul, Weiss, Rifkind, Wharton & Garrison

(“the Wells Report”). See JA92. Based on documentary evidence, more than 60


10

interviews, and a forensic report prepared by independent experts, the Wells Report

concluded that James McNally, the Patriots’ attendant in the Officials’ Locker Room,

and John Jastremski, a Patriots equipment manager, had conspired to deflate the

footballs in violation of League rules. Specifically, the report concluded that, after

the pre-game official testing and in violation of established protocol, McNally snuck

the balls into a bathroom, where he proceeded to deflate their pressure.

Although Brady refused to cooperate fully with the Wells investigation,

significant evidence linked him to the deflation scheme. Brady refused to provide

any of his own phone records, text messages, or e-mails—even after investigators

offered to allow his counsel to screen and control their production. But other phone

records revealed that he had an inordinate number of communications with

Jastremski immediately following the AFC Championship Game. The day after the

game, as the League’s investigation was becoming public, the two men spoke on the

phone four separate times, for a total of 25 minutes, and exchanged 12 text messages.

See JA196. Records showed no phone communication between them for at least six

months before that day. JA198 n.64. The text messages also revealed that Brady

had invited Jastremski to meet with him in the quarterback room that afternoon—an

unprecedented invitation from him or any other Patriots quarterback during

Jastremski’s 20 years with the club. JA200. This pattern of unusually frequent

communications continued over the following two days. JA201-205.


11

Text messages between Jastremski and McNally also indicated that the two

had been deflating game balls at Brady’s request long before the AFC Championship

Game. In messages dating back to May 2014 and continuing during the 2014-2015

season, McNally referred to himself as “the deflator” and the two discussed deflation

using “needles.” JA170, 175. At one point, Jastremski told McNally that Brady

“actually brought you up and said you must have a lot of stress trying to get them

done.” JA172. At various times, McNally expressed frustration with Brady’s

requests, once saying to Jastremski that “Tom sucks … im going to make that next

ball a f—kin balloon.” JA173.

The Wells Report also found considerable evidence that in response to their

demands, Brady had provided both men with autographs and other memorabilia.

McNally often asked Jastremski to convey to Brady his demands for items of value

(e.g., “cash and newkicks”), and on at least one occasion McNally suggested that he

was prepared to disclose the arrangement (“not going to espn… yet”) if his demands

were not met. JA170, 176. The two were, in fact, handsomely rewarded. JA182-

189. For example, on January 10, 2015, before the Patriots’ AFC divisional playoff

game—the game before the AFC Championship Game—Brady signed a game-worn

jersey and two footballs for McNally. JA184. “Jastremski confirmed that Brady

autographed the items for McNally around the time that Brady was selecting the

game balls to be used during” that game. Id. Brady also gave occasional gifts to


12

Jastremski, including money, gift cards, and a signed game ball. See JA184-85.

The investigation also revealed how unlikely it was that Jastremski and

McNally would have been deflating game balls without Brady’s consent. Although

Brady professed ignorance before October 2014 of the permissible inflation range

under the NFL rules or the range targeted by the Patriots’ staff during game

preparations, his preference for deflated footballs had been a matter of public

knowledge for years. He publicly expressed this preference a number of times to

the media both before and after October 2014, and in 2006 he specifically discussed

inflation levels when he was personally involved in a successful effort to change

League rules to allow each team to prepare its own game balls. JA129-30. The

Patriots’ equipment staff thus knew that inflation level was important to Brady and

“that he wanted the footballs inflated at the lowest permissible level.” SPA43; see

also JA132-33. While Brady claimed during his interview that he did not even know

who McNally was until after the AFC Championship Game incident, McNally “told

[League] investigators that ‘Tom … always has me pass a message to the Officials

that he likes the balls at the minimum permissible PSI of 12.5.… I know this is what

Tom wants, and I have been personally told by him of the ball weight preference.”

SPA43; JA224. Jastremski told investigators that Brady knew McNally and was

well aware of his ball preparation responsibilities. JA224.

While the Wells Report lamented that Brady’s refusal to cooperate completely


13

with the investigation “limited the discovery of relevant evidence and was not

helpful to the investigation,” JA116, it found “substantial and credible evidence” that

Brady “was at least generally aware of the inappropriate activities of McNally and

Jastremski involving the release of air from Patriots game balls.” JA97. The report

further found it “unlikely” that McNally and Jastremski would have deflated the

footballs without Brady’s “consent” and “approval.” JA114.

D. Brady’s Discipline and Arbitration Hearing

On May 11, 2015, the League informed the Patriots that, after considering all

the evidence and findings in the Wells Report, the Commissioner had concluded that

the club had violated the NFL’s Policy on Integrity of the Game & Enforcement of

Competitive Rules (“Competitive Integrity Policy”) and imposed a penalty of a

$1 million fine and forfeiture of two draft picks. The Commissioner also prohibited

both McNally and Jastremski, whom the Patriots had already suspended indefinitely,

from future involvement in the preparation, supervision, or handling of footballs.

The same day, the League informed Brady of the Commissioner’s finding that

he had engaged in “conduct detrimental to the integrity of, or public confidence in,

the game of professional football,” in violation of Section 1(a) of Article 46 of the

CBA. Further, and pursuant to his authority under Article 46 and the Standard Player

Contract, the Commissioner suspended Brady without pay for the first four games

of the 2015 season.


14

A timely appeal was filed under the CBA, and the Commissioner exercised

his discretion to serve as the hearing officer for that appeal. Before the arbitration

hearing, the Players Association and Brady filed a number of motions. First, they

asked the Commissioner to recuse himself, contending that he was a central witness,

had prejudged the issues when he publicly thanked Wells for performing a thorough

investigation, and could not impartially arbitrate the dispute. Based on his express

authority under Article 46 of the CBA and his judgment that he was fully capable of

acting impartially, the Commissioner denied the recusal motion. See SPA67-69.

Second, the Players Association and Brady moved to compel the testimony of

Commissioner Goodell, NFL General Counsel Jeff Pash, NFL Executive Vice

President for Football Operations Troy Vincent, Sr., and Wells. The Commissioner

granted the motion, in part, and denied it, in part. Because Article 46 “does not

address the permitted scope of witness testimony at appeals hearings,” the

Commissioner concluded that “it is within the reasonable discretion of the hearing

officer to determine the scope of the presentations and, where appropriate, to compel

the testimony of any witnesses whose testimony is necessary for the hearing to be

fair.” SPA62. Because Wells had led the investigation of the events, the

Commissioner ordered him to testify “regarding the substance and conclusions of

his report,” subject to the limits of attorney-client privilege. SPA63. And because

Vincent had first-hand knowledge of some of the relevant events, the Commissioner


15

compelled his testimony regarding those matters. Id.

With respect to himself and Pash, however, the Commissioner ruled that the

testimony was not necessary because neither had first-hand knowledge of the events

and neither had been substantively involved in the Wells investigation. Although a

League press release had initially suggested that Pash would co-lead the

investigation, Pash’s ultimate “role was limited to facilitating access by Mr. Wells to

witnesses and documents.” Id. The Commissioner specifically authorized Wells to

be questioned regarding “whether Mr. Pash played a substantive role in the

investigation,” however, and he expressed willingness to “revisit” his ruling if that

questioning or any other evidence at the hearing revealed that the testimony of either

witness “is necessary for a full and fair hearing.” SPA64. No party ever asked the

Commissioner to revisit that ruling.

Third, the Players Association and Brady moved to compel the production of

interview notes and memoranda generated by Paul Weiss attorneys during their

investigation. The Management Council had already produced the Wells Report, all

documents that the Paul Weiss team considered when preparing the report, and all

documents that the Commissioner reviewed in arriving at his conclusions. The

remaining documents sought were the Paul Weiss attorneys’ internal attorney work

product. Relying on the express terms of Article 46 and past precedent applying

those terms, the Commissioner concluded that the documents did not need to be


16

produced because the CBA contemplates only very limited discovery in conduct

detrimental appeals. See SPA64-65.

The Commissioner gave four other independent reasons for denying the

request: (1) he did not review the Paul Weiss notes before imposing the suspension;

(2) the documents are attorney work product; (3) Brady’s counsel was present for

many of the interviews at which the notes were prepared, including Brady’s

interview; and (4) the Players Association did not “identif[y] any material factual

dispute that Paul, Weiss’ internal work product would help resolve.” SPA65-66.

On June 23, 2015, the Commissioner held a hearing involving “almost ten

hours of sworn testimony and counsel argument” and over 300 exhibits. SPA42. In

addition to confirming the Wells Report’s findings, the hearing revealed that Brady’s

obstruction of the investigation was even more serious than previously understood.

At the hearing, Brady confirmed that, on March 6, 2015, “the very day that he was

interviewed by Mr. Wells and his investigative team,” he “instructed his assistant to

destroy the cellphone that he had been using since early November 2014, a period

that included the AFC Championship Game and the initial weeks of the subsequent

investigation.” Id. During that period, “almost 10,000 text messages were sent or

received by Mr. Brady using that cellphone.” Id. Those messages could not be

recovered from the phone after it was destroyed.

When “he arranged for its destruction, Mr. Brady knew that Mr. Wells and his


17

team had requested information from that cellphone.” SPA42-43. Yet Brady

instructed that the phone be destroyed anyway; he did not even tell the investigators

of its destruction. While he later claimed that it was his standard practice to destroy

his phone every time he gets a new one, he had not destroyed two of his previous

phones. Nor did Brady explain why he suddenly decided to replace his phone on the

very day that he was meeting with investigators who had asked him repeatedly to

produce communications from it, or why he never revealed that fact when

questioned by the investigators about the phone and its contents.

E. The Commissioner’s Final Decision

On July 28, 2015, the Commissioner issued a written “final decision”

affirming the four-game suspension. Considering all the relevant evidence,

including the evidence that came to light after the Wells Report was issued, the

Commissioner found that “Brady knew about, approved of, consented to, and

provided inducements and rewards in support of a scheme to tamper with the game

balls after they had been approved by the game officials to be used in the AFC

Championship Game.” SPA51. On that basis, he concluded that Brady had engaged

in conduct detrimental to the integrity of, and public confidence in, the game within

the meaning of Article 46.

Among his many other findings, the Commissioner concluded that:

“(1) Mr. Brady participated in a scheme to tamper with the game balls after they had


18

been approved by the game officials for use in the AFC Championship Game and

(2) Mr. Brady willfully obstructed the investigation by, among other things,

affirmatively arranging for destruction of his cellphone knowing that it contained

potentially relevant information that had been requested by the investigators.”

SPA54. “The result” of this scheme, the Commissioner concluded, “was to

undermine, if not vitiate, the game officials’ efforts to ensure that the game balls used

by the Patriots complied with league rules.” SPA51-52. The Commissioner ruled

that these actions “indisputably constitute[d] conduct detrimental to the integrity of,

and public confidence in, the game of professional football.” SPA54.

The Commissioner also reconsidered and affirmed the level of discipline. At

the outset, the Commissioner found that the conduct here was “[u]nlike any other

conduct detrimental proceeding of which [he was] aware, and certainly unlike any

cited by either party.” SPA55. Brady’s “uncoerced participation in a scheme to

violate a competitive rule that goes to the integrity of the game” differentiated his

conduct from other cases. Id. Brady also not only “fail[ed] to cooperate with the

League’s investigation,” but engaged in “destruction of potentially relevant evidence

with knowledge that the evidence had been sought in the investigation.” Id. All of

that made his conduct “fundamentally different from” the conduct in any case to

which any party attempted to compare it, and defeated the Players Association’s

suggestion that the absence of a comparable suspension in a comparable case


19

somehow constrained the Commissioner’s discretion. Id.

After explaining in detail how this case differed from other cases to which the

Players Association had attempted to compare it, the Commissioner noted that “the

closest parallel of which [he was] aware is … the policy governing performance

enhancing drugs,” which also involve “an improper effort to secure a competitive

advantage in, and threatens the integrity of, the game.” SPA57. The Commissioner

explained that the four-game penalty he imposed was “fully consistent with, if not

more lenient than,” that policy, which calls for a four-game suspension for a player’s

first positive drug test and a six-game suspension if the player is found to have used

masking agents—i.e., to have tried, as Brady was found to have done here, “to cover

up the underlying violation.” Id. While the Commissioner made clear that he did

not rely on the steroid policy “to determine the discipline imposed on Mr. Brady,” it

“reinforce[d] [his] conclusion … that the discipline imposed on Mr. Brady is not

excessive or without precedent, and is in fact fair and reasonable.” Id. n.17.

Finally, the Commissioner rejected Brady’s arguments about fair notice and

other legal issues. “Mr. Brady had more than adequate notice,” the Commissioner

found, “that he could be subject to ‘conduct detrimental’ discipline, including

suspension,” for his misconduct. SPA57. It is widely understood that the

Commissioner has broad authority to sanction “conduct detrimental to the integrity

of, or public confidence in, the game of professional football.” JA345. Because the


20

parties could not contemplate every conceivable action that might be considered

conduct detrimental, the CBA “does not require itemization of specific categories of

misconduct that may be deemed ‘conduct detrimental’” or of the specific discipline

that may be imposed for every violation. SPA57. The CBA instead expressly

entrusts those determinations to the Commissioner’s “reasonable judgment,” and the

conduct at issue here was “plainly within the scope of matters that may reasonably

be judged by the Commissioner to affect the integrity of, and public confidence in,

the game of professional football.” SPA58.

The Commissioner also dispelled the suggestion that the discipline rested on

a purported violation of the Competitive Integrity Policy rather than Article 46’s

“conduct detrimental” authority. As he explained, although the Wells investigation

was conducted pursuant to the Competitive Integrity Policy (because it is the policy

that governs “investigations of competitive violations by clubs”), that policy “was

not the source or the basis for the discipline” imposed here. Id. n.19. Instead, “[a]s

the discipline letter makes clear, Mr. Brady was suspended for conduct detrimental

to the integrity of and public confidence in the game of professional football”—

which the CBA has prohibited for decades. SPA59 n.19.

In closing, the Commissioner concluded that while he had “entered into the

appeal process open to reevaluating” his earlier conclusions, “[e]specially in light of

the new evidence introduced at the hearing, … [his] findings and conclusions ha[d]


21

not changed in a manner that would benefit Mr. Brady.” SPA60. Instead, the

evidence only reaffirmed his conclusion that “Mr. Brady engaged in conduct

detrimental to the integrity of, and public confidence in, the game of professional

football,” and that a four-game suspension is the appropriate discipline for that

violation of the CBA. SPA61.

F. Proceedings Below

The parties filed competing motions in the United States District Court for the

Southern District of New York. Appellants moved to confirm the Commissioner’s

award; Appellees moved to vacate it. Before deciding those motions, the district

court required the parties to engage in, and personally supervised, four days of

unsuccessful settlement negotiations, including two days where he required the

attendance of the Commissioner and Brady. See JA6, 8-10. Eventually, the district

court vacated the award based on three grounds—that Brady lacked notice that he

could be suspended for his conduct, that the Commissioner should have compelled

the testimony of Pash, and that Brady was entitled to discovery of Paul Weiss’s

internal notes and memoranda.

On the merits of the award, the district court did not dispute that the CBA

gives the Commissioner discretion to determine whether conduct is detrimental to

the integrity of, or public confidence in, the game of professional football and to

determine the appropriate discipline for such conduct. See SPA10 n.8. Nor did the


22

district court suggest that the Commissioner’s decision was outside the bounds of

what he could “reasonably judg[e] … to be detrimental to the League or professional

football.” JA353. The court nonetheless vacated the Commissioner’s decision based

on its conclusion that Brady was not “reasonably … on notice” that his “discipline

would (or should) be the same as applied to a player who violated the NFL Policy

on Anabolic Steroids and Related Substances.” SPA24. In reaching that conclusion,

the court said nothing about the Commissioner’s express disclaimer that he did not

rely on the steroid policy in arriving at the appropriate discipline in this case. SPA57.

The court instead simply detailed at length its disagreement with the Commissioner’s

reasoning that, while Brady’s unprecedented actions were “fundamentally different

from” anything the parties or the CBA discussed, the steroid policy offered “the

closest parallel.” SPA55, SPA57; see also SPA21-23.

Next, the district court held that “[n]o NFL policy or precedent provided

notice that a player could be subject to discipline for general awareness of another

person’s alleged misconduct.” SPA25. The court acknowledged that the

Commissioner’s findings (i.e., that Brady had “approved of, consented to, and

provided inducements and rewards in support of a scheme …”) went “far beyond

the ‘general awareness’ finding in the Wells Report” (which itself concluded that the

scheme was most likely undertaken with Brady’s “approval” and “consent,” JA114).

SPA17. And the district court did not question the Commissioner’s discretion to


23

consider the new evidence of Brady’s misconduct that came to light during the

hearing. Nonetheless, because the initial discipline letter adopted the findings of the

Wells Report, the court insisted on evaluating the Commissioner’s final decision as

if it were supported by a finding of “general awareness” alone, without even taking

into account the Commissioner’s finding that Brady “participated in a scheme to

tamper with the game balls after they had been approved by the game officials for

use in the AFC Championship Game,” SPA54, or the fact that Brady refused to

cooperate with the Wells investigation and deliberately destroyed highly relevant

evidence.

The district court also concluded that the Commissioner had imposed

discipline under the wrong policy. First, notwithstanding the fact that the

Commissioner’s final decision expressly disclaimed any reliance on the League’s

Competitive Integrity Policy, the district court insisted that the decision must have

been based on the Competitive Integrity Policy because the Wells investigation was

conducted pursuant to that policy. SPA28 n.19; SPA58 n.19. The district court thus

held that the award must be vacated because Brady “did not have notice of the

Competitive Integrity Policy” and “that Policy could not serve as the basis for

disciplinary action against him.” SPA30.

The court then concluded that the Commissioner erred in interpreting the CBA

to allow him to impose discipline under Article 46 instead of the “Player Policies


24

regarding equipment violations.” SPA32. In the court’s view, the “specific provision

within the Player Policies is better calculated to provide notice to a player than a

general concept such as ‘conduct detrimental.’” Id. The district court did not explain

how the equipment violations policy has anything to say about the appropriate

discipline for activities intended to undermine the efforts of game officials to ensure

compliance with the Official Playing Rules, not to mention affirmative efforts to

obstruct a League investigation into potential violations of those rules. Nor did it

mention that the equipment policy specifically recognizes the Commissioner’s

authority to suspend players for violations.

Finally, the court disagreed with two of the Commissioner’s procedural

rulings, holding that he should have required Pash to testify and should have

compelled disclosure of the Paul Weiss internal work product. As to the Pash

testimony, the court refused to accept the Commissioner’s finding that Pash was not

substantively involved in the Wells investigation. The court instead proceeded on

the assumption that Pash was “the co-lead investigator” because the League had

initially announced that he would co-lead the Wells investigation and because Wells

had testified at the hearing that Pash had reviewed and commented on a draft of the

Wells Report. Id. The court concluded that refusal to compel Pash’s testimony

therefore violated NFL arbitral precedents requiring that players be “afforded an

opportunity to confront their investigators,” SPA33, and was “fundamentally unfair”


25

because it “foreclosed” the parties “from exploring … whether the Pash/Wells

Investigation was truly ‘independent,’” SPA34-35. In reaching that conclusion, the

court did not mention the Commissioner’s finding that he would have reached the

same conclusion whether or not the Wells Report was “independent,” or his

conclusion that Appellees had waived any objection to the exclusion of Pash’s

testimony by declining to take the Commissioner up on his offer to “revisit” that

evidentiary ruling at the appeal hearing. SPA60 nn.20-21.

As to the Paul Weiss attorneys’ work product, the court did not evaluate the

Commissioner’s detailed interpretation of the CBA’s discovery provisions. Instead,

the court found that the denial of access to the attorneys’ internal work product was

“fundamentally unfair” because “[t]he interview notes were, at the very least, the

basis for the Wells Report, and Brady was prejudiced by his lack of access to them.”

SPA37. And again the district court suggested that the evidence was necessary to

evaluate whether the Wells investigation was “independent.” Id.

Appellees also renewed their claim that the Commissioner could not be

impartial, and they argued that the Commissioner was not permitted to rely on facts

outside the Wells Report to affirm the discipline. Because the court had already

vacated the Commissioner’s decision, it did not address those alternative arguments.


26

SUMMARY OF ARGUMENT

The district court identified three purported errors in the Commissioner’s

disciplinary decision. Those three assignments of error reflect not an arbitration

proceeding infected with fraud or riddled with the kind of manifest errors that permit

a collateral attack under the LMRA’s deferential standards, but the district court’s

decision to substitute its judgment for the arbitrator’s in a way that fundamentally

ignored the deferential nature of a court’s review in these circumstances. When a

party dissatisfied with the results of a labor arbitration seeks to collaterally attack

those proceedings in court, the court’s role is extremely limited. The arbitrator’s

determinations need only be grounded in the CBA and devoid of true caprice. Here,

the Commissioner exercised authority expressly granted to him by the CBA. His

decisions were eminently reasonable, but that is not the test. Applying the correct

and deferential standard, his substantive and procedural decisions cannot be

collaterally attacked.

Under longstanding Supreme Court and Second Circuit precedents, the

Commissioner’s ruling must be enforced. The Commissioner’s decision was well-

grounded in the CBA, specifically Article 46. That provision affords the

Commissioner broad authority to define and discipline conduct detrimental to the

integrity of, and public confidence in, the game. All NFL players have more than

adequate notice of that well-publicized authority. It is not only a standard and


27

necessary power of the commissioner of a professional sports league; it is included

in the Standard NFL Player Contract that every player signs and the NFL

Constitution and Bylaws, both of which are part of the CBA. The Commissioner

relied on that authority when he disciplined Brady for his involvement in a deliberate

scheme to deflate game balls to be used during an important playoff game and his

conscious effort to destroy the evidence of his wrongdoing during the League’s

subsequent investigation. And the Commissioner undoubtedly was applying Article

46 of the CBA when he exercised his considered judgment to affirm the four-game

suspension. Thus, the Commissioner’s decision is nothing at all like the sort of

severe transgressions—i.e., fraud, dishonesty, or complete departure from the

CBA—required for a federal court to take the drastic measure of disturbing a labor

arbitration award. The decision is, in fact, eminently fair and reasonable given the

egregious conduct involved, but the League’s burden was not to persuade the district

court that the punishment was optimal or even fair. The district court’s evident

disagreement with the Commissioner’s substantive rulings did not empower it to

overturn his award.

The Commissioner’s procedural rulings likewise cannot be collaterally

attacked. Decades of precedents make clear that an arbitrator’s procedural rulings

are, if anything, entitled to even greater deference under the LMRA. As with his

disciplinary decision, there can be no doubt that the Commissioner’s procedural


28

rulings drew their essence from the parties’ CBA. When the Commissioner declined

to compel the Pash testimony, he exercised the discretion the CBA grants him over

evidentiary matters during an Article 46 hearing. He found, as a factual matter, that

Pash was not substantively involved in the Wells investigation, he ordered that Wells

testify regarding Pash’s involvement in the process in order to confirm that premise,

and he offered to revisit the matter if any party requested that he do so. No such

request was ever made.

The district court was just as fundamentally mistaken to second-guess the

Commissioner’s refusal to order discovery of the Paul Weiss attorneys’ internal

investigative notes and memoranda. The Commissioner interpreted the CBA as not

requiring disclosure of the materials, and he gave a number of independent reasons

supporting that decision. That sound exercise of his discretion could not be disturbed

were the Commissioner a district judge under review by the Court of Appeals. It, a

fortiori, is not subject to collateral attack under the LMRA’s far more deferential

standard of review.

Finally, there is no reason to remand the case for the district court to resolve

Appellees’ alternative claims, which were briefed below and are plainly meritless.

This Court has exercised its discretion to enforce an arbitration award without a

remand in similar circumstances, and judicial economy supports doing so here.


29

STANDARDS OF REVIEW

This Court reviews “a district court decision upholding or vacating an

arbitration award de novo on questions of law and for clearly erroneous findings of

fact.” Wackenhut, 126 F.3d at 31. Because the issues raised in this appeal are purely

legal, this Court reviews the decision below de novo.

The Court’s review of the underlying arbitration award, by contrast, is

governed by some of the most deferential standards known to the law. See Misco,

484 U.S. at 37; Wackenhut, 126 F.3d at 32-33. As detailed elsewhere, substantive

decisions need only be “plausibly grounded in the parties’ agreement,” Wackenhut,

126 F.3d at 32, and procedural rulings may not be disturbed unless they “amount to

affirmative misconduct,” Misco, 484 U.S. at 40. Thus, while the Court reviews the

district court’s decision de novo, it owes the Commissioner’s arbitration award

exceptional deference.

ARGUMENT

I. The Commissioner’s Arbitration Award Must Be Enforced.

The parties mutually agreed to grant the Commissioner broad authority to

protect the integrity of, and public confidence in, the game of professional football.

Article 46 of the CBA allows the Commissioner to determine when player

misconduct has threatened the integrity of the game, and it affords him the discretion

to impose discipline for such offenses according to his considered judgment. Every

player has notice of this authority, as well as notice that offending conduct can result


30

in suspension; indeed, every player acknowledges that notice and authority when he

signs his Player Contract. There was thus no legitimate basis under the LMRA for

the district court to disturb the Commissioner’s award.

A. Judicial Review of a Labor Arbitration Award is Extremely Limited Under the Labor Management Relations Act.

The standard of review that the district court should have applied in this case

is “among the narrowest known to the law.” Union Pac. R.R. Co. v. Sheehan, 439

U.S. 89, 91 (1978) (per curiam). Under the LMRA, federal courts “do not sit to hear

claims of factual or legal error by an arbitrator as an appellate court does in reviewing

decisions of lower courts.” Misco, 484 U.S. at 38. Instead, courts must enforce an

arbitrator’s award if it “draws its essence from the collective bargaining

agreement”—that is, so long as it “is plausibly grounded in the parties’ agreement.”

Wackenhut, 126 F.3d at 31-32; Saint Mary Home, 116 F.3d at 44.

Thus, under longstanding Supreme Court and Second Circuit precedent,

courts must uphold a labor arbitration award if the arbitrator “offer[s] even a barely

colorable justification for the outcome reached.” Andros Compania Maritima, S.A.

v. Marc Rich & Co., 579 F.2d 691, 704 (2d Cir. 1978). Unless the award was

“procured through fraud or dishonesty,” or it so wholly departs from the parties’

agreement that it can be understood solely as “an exercise of the arbitrator’s own

brand of industrial justice” without any basis in the contract, the court must enforce

the award, even if it views the arbitrator’s decision as “very incorrect.” Local 97,


31

Int’l Bhd. Of Elec. Workers, AFL-CIO v. Niagara Mohawk Power Corp., 196 F.3d

117, 124-125 (2d Cir. 1999) (quotation marks omitted).

That is so whether the court is reviewing the merits of an arbitrator’s decision

or one of the arbitrator’s procedural rulings. If anything, an arbitrator’s procedural

rulings are entitled to even more deference. Such decisions “are to be left to the

arbitrator” and may be disturbed only if they are the product of “bad faith” or

“affirmative misconduct.” Misco, 484 U.S. at 40. Thus, in both circumstances, mere

disagreement with the arbitrator’s legal or factual conclusions is manifestly

insufficient to justify vacatur of an award.

Section 301’s exceptionally deferential standard rests on sound public policy.

Congress crafted the LMRA “to promote industrial stabilization through the

collective bargaining agreement,” and “[a] major factor in achieving industrial peace

is the inclusion of a provision for arbitration of grievances in the collective

bargaining agreement.” United Steelworkers of America v. Warrior & Gulf

Navigation Co., 363 U.S. 574, 578 (1960). Federal labor law thus “reflect[s] a

decided preference for private settlement of labor disputes without the intervention

of government.” Misco, 484 U.S. at 37. In place of constant confrontation between

management and labor—and the inefficient work stoppages such conflicts would

entail—the LMRA encourages collective bargaining and arbitration as voluntary


32

systems of “industrial self-government.” Warrior & Gulf Navigation, 363 U.S. at

580. Under the LMRA, “arbitration is the substitute for industrial strife.” Id. at 578.

This system works, however, only if the parties can be sure that an arbitrator’s

decision will be respected. Thus, where the parties have agreed to arbitrate disputes,

the LMRA prohibits re-litigation of those disputes in federal court. “Because the

parties have contracted to have disputes settled by an arbitrator chosen by them

rather than by a judge, it is the arbitrator’s view of the facts and of the meaning of

the contract that they have agreed to accept.” Misco, 484 U.S. at 37-38. The bedrock

“federal policy of settling labor disputes by arbitration would be undermined if

courts had the final say on the merits of the awards.” United Steelworkers of America

v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596 (1960). Federal district courts,

therefore, “‘“have no business weighing the merits of the grievance [or] considering

whether there is equity in a particular claim.”’” Garvey, 532 U.S. at 509 (quoting

Misco, 484 U.S. at 37 (quoting Steelworkers v. American Mfg. Co., 363 U.S. 564,

568 (1960))). Likewise, any procedural rulings “which grow out of the dispute and

bear on its final disposition are to be left to the arbitrator.” Misco, 484 U.S. at

40. And an arbitrator’s discretion is “especially” broad when he is fashioning a

remedy. Id. at 41.1

1 At times, the district court relied on the Federal Arbitration Act rather than the

LMRA. That was incorrect; because this dispute arises under a collective bargaining


33

B. The Commissioner’s Award Easily Satisfies the LMRA.

Applying those settled standards, this should have been an easy case. The

Commissioner’s arbitration award unquestionably drew its essence from the parties’

collective bargaining agreement. The Commissioner imposed Brady’s discipline

pursuant to Article 46 of the CBA, which grants him authority to discipline a player

who has engaged in “conduct detrimental to the integrity of, or public confidence in,

the game of professional football.” The Commissioner imposed a four-game

suspension, which is both a form and a length of discipline that the CBA expressly

authorizes him to impose. His final decision extensively considered the evidence,

made detailed findings of fact supported by that evidence, expressly concluded that

the misconduct fell within Article 46’s definition of conduct detrimental to the

integrity of, or public confidence in, the game, and expressly considered and rejected

all legal and factual objections presented by Appellees.

In short, every step of the way, the Commissioner was clearly construing and

applying the CBA and exercising the authority that the parties to the CBA expressly

delegated to him. Thus, had the district court adhered to the LMRA’s narrow

agreement, the LMRA governs judicial review of the award. See Coca-Cola Bottling Co. v. Union Local 812, 242 F.3d 52, 54-55 (2d Cir. 2001). In all events, the court’s analysis would fare no better under the FAA provisions on which it erroneously relied, as “the stringent standard for vacating an arbitration award is materially the same under the FAA [and the] Labor Management Relations Act.” Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv., 754 F.3d 109, 113 (2d Cir. 2014).


34

standard of review, it should have quickly concluded that this arbitration award must

be upheld. Instead, the court not only second-guessed the Commissioner’s findings

and conclusions, but proceeded to displace them with a series of its own views,

which had no place in the deferential review demanded by the LMRA.

1. The district court fundamentally failed to apply the correct legal standard.

At the outset, the district court reviewed the Commissioner’s decision through

a fundamentally flawed construct. The court began by quoting this Court’s statement

that an arbitrator “‘must interpret and apply [the collective bargaining] agreement in

accordance with the “industrial common law of the shop.”’” SPA19 (quoting United

States v. Int’l Bhd. Of Teamsters, 954 F.2d 801, 809 (2d Cir. 1992) (quoting

Alexander v. Gardner-Denver Co., 415 U.S. 36, 53 (1974))). But whatever that

statement may say about the role of an arbitrator, it in no way supports the conclusion

the district court drew from it—namely, that courts are entitled to conduct a plenary

review of whether the arbitrator followed the “law of the shop.” To the contrary, this

Court has expressly rejected the “argument that an arbitrator has a duty to follow

arbitral precedent and that failure to do so is reason to vacate an award.” Wackenhut,

126 F.3d at 32. What matters is whether the arbitrator’s decision is “grounded in the

collective bargaining agreement,” not whether it is grounded in “arbitral precedent.”

Id. “[A]s long as the arbitrator is even arguably construing or applying the contract

and acting within the scope of his authority,” the court must enforce his decision—


35

even if it is “convinced he committed serious error” or that arbitral precedent

supports a different result. Misco, 484 U.S. at 38.

The district court made no effort to ground its own decision in that long-settled

legal framework. Indeed, it hardly even mentioned this Court’s or the Supreme

Court’s seminal labor arbitration cases. Instead, it repeatedly engaged in what can

only be described as de novo review, rejecting every factual finding, every CBA

interpretation, and every legal conclusion with which it disagreed—often referring

to those conclusions as mere “arguments” or “contentions.” SPA22 n.15, SPA31.

But “[w]hen an ‘arbitrator explains his conclusions in terms that offer even a barely

colorable justification for the outcome reached, confirmation of the award cannot be

prevented by litigants who merely argue, however persuasively, for a different

result.’” Saint Mary Home, 116 F.3d at 44 (quoting Andros Compania Maritima,

579 F.2d at 704) (alteration marks omitted). The Commissioner provided far more

than a “colorable justification” for his conclusions in this case. His decision not only

walked through all the evidence he considered and credited in painstaking detail, but

also explained at length his efforts to determine how the CBA should be applied to

the unprecedented situation before him.

In doing so, the Commissioner readily acknowledged the need “for

consistency in discipline for similarly situated players.” SPA55. But he also

explained in detail why he reached the perfectly reasonable—indeed, unassailable—


36

conclusion that Brady’s conduct made this “[u]nlike any other conduct detrimental

proceeding of which [he was] aware, and certainly unlike any cited by either party.”

Id. And in the absence of any direct precedent, the Commissioner did what any good

arbitrator (or judge) would do when crafting an appropriate remedy: He used the

combination of the CBA and arbitral precedent to reason by analogy and “bring his

informed judgment to bear in order to reach a fair solution of a problem.” Enterprise

Corp., 363 U.S. at 597.

Rather than respect the Commissioner’s deep experience in and knowledge of

professional football and defer to his diligent efforts to construe and apply the CBA,

which gave the Commissioner broad discretion to address issues of this character,

the district court fixated on its disagreement with the Commissioner’s reasoning that

the “closest parallel” was player steroid use because it similarly “reflects an

improper effort to secure a competitive advantage in, and threatens the integrity of,

the game.” SPA57. This fixation was especially curious and inappropriate given

that Appellees had not directly challenged the Commissioner’s analogy to the steroid

policy. At any rate, there is nothing remotely inappropriate—let alone so

exceedingly impermissible as to constitute “his own brand of industrial justice,”

Misco, 484 U.S. at 36—about the analogy, which in all events was just that. Both

forms of misconduct do, in fact, constitute “an improper effort to secure a

competitive advantage,” and, like the use of a masking agent, Brady’s knowing


37

destruction of highly relevant evidence could reasonably be construed as an effort

“to cover up the underlying violation.” SPA57. That the district court may believe

that steroid use should be punished more harshly than the conduct here is irrelevant.

Both actions are plainly misconduct, and the metaphysical question as to which is

more detrimental to the game is quite properly assigned by the CBA to the

Commissioner, not the courts.

2. The district court’s fair notice concerns were misplaced.

The district court cannot get around the prohibition on judicial second-

guessing of matters contractually assigned to the arbitrator by dressing up its

disagreements with the Commissioner’s conclusions as “fair notice” concerns. The

Commissioner made crystal clear that he was not imposing discipline under the

steroid policy; he was simply pointing out, after the fact, that the discretionary

punishment he had chosen to impose was “fully consistent with, if not more lenient

than,” the punishment under that policy, and therefore could not be described as

wholly outside the bounds of what the parties to the CBA contemplated as

appropriate punishment for conduct that seeks to “secure a competitive advantage

in, and threatens the integrity of, the game.” Id.

In doing so, the Commissioner did what every sentencing judge in America

does when confronted with an outlier case. He looked to how a different type of

misconduct with similar features has been punished to determine what is or is not a


38

reasonable outcome. A defendant is entitled to notice of his statutory range of

punishment, not to advance notice of the analogies a judge might find persuasive in

selecting a punishment within that range. Every player knows—because every

player signs a contract that says so—that the Commissioner has substantial

discretion to discipline conduct detrimental with a suspension up to and including

indefinite suspension. The notion that a player is entitled to advance notice that the

Commissioner might draw a particular analogy in reviewing a 4-game suspension—

an analogy that was particularly apt when Brady’s “masking” activities came to light

on appeal—is fundamentally mistaken and wholly inconsistent with the limited

scope of judicial review permitted in considering this type of collateral attack.

Applying the proper standard, the only “fair notice” to which a player is

entitled is notice that the Commissioner has the power to discipline a player for

conduct that he deems detrimental to the integrity of, or public confidence in, the

game of football, and to impose discipline for such conduct that includes the

discipline imposed here. Brady unquestionably had that in spades. For over forty

years, the CBA has consciously afforded the Commissioner broad authority to define

“conduct detrimental” and to administer penalties—including suspensions, even

indefinite suspensions. Where a CBA delegates broad disciplinary authority, the

arbitrator “is to bring his informed judgment to bear in order to reach a fair solution

of a problem.” Enterprise Corp., 363 U.S. at 597. “This is especially true when it


39

comes to formulating remedies,” where “the need is for flexibility in meeting a wide

variety of situations.” Id. It is common sense that parties are typically unable to

contemplate in advance “what specific remedy should be awarded to meet a

particular contingency.” Id. And that obvious fact is even more apparent for

provisions that, like Article 46, define prohibited conduct pursuant to a standard, not

to particular actions.

That sort of general authority is not uncommon in labor contracts, and it hardly

poses a “fair notice” concern. Rather, like the broad “just cause” provisions found

in many collective bargaining agreements, it puts players on notice that the

Commissioner retains authority to punish any conduct that, in his reasonable

judgment, harms the game. See, e.g., Local 453, Int’l Union of Elec., Radio & Mach.

Workers v. Otis Elevator Co., 314 F.2d 25, 28 (2d Cir. 1963) (Marshall, J.) (“That

the parties intended to leave such definition to the arbitrator is made plain both by

the ‘plenary grant’ of power made to him and by the broad scope of the stipulated

question, framed only in terms of ‘just cause,’ which accompanied the submission.”

(citations omitted)); Saint Mary Home, 116 F.3d at 45 (upholding arbitrator’s

application of “just cause” provision); Hill v. Staten Island Zoological Society, Inc.,

147 F.3d 209, 214 (2d Cir. 1998) (same); cf. Pa. Dep’t of Corrections v. Yeskey, 524

U.S. 206, 212 (1998) (observing that capacious language in the statute “does not


40

demonstrate ambiguity,” but instead “demonstrates breadth” (quotation marks

omitted)).

Indeed, other professional sports commissioners enjoy similarly broad

authority to protect the best interests of their games. The Commissioner of Major

League Baseball has long had the power to discipline a player “for conduct that is

materially detrimental or materially prejudicial to the best interests of Baseball.”

Major League Baseball Collective Bargaining Agreement Art. XII(B) (2012),

available at http://atmlb.com/1Jlouap. The Commissioner of the National Hockey

League may discipline players for conduct “that is detrimental to or against the

welfare of the League or the game of hockey.” National Hockey League Collective

Bargaining Agreement Art. 18-A.2 & Standard Player Contract (2012), available at

http://bit.ly/1ZYvmWR. And the National Basketball Association’s collective

bargaining agreement grants its commissioner the power to discipline players for

conduct that threatens “the integrity of, or the maintenance of public confidence in,

the game of basketball.” National Basketball Association Collective Bargaining

Agreement Art. XXXI (2011), §§ 9(a), (b)(ii), (d), available at http://nbpa.com/cba/.

Federal courts have upheld other commissioners’ exercise of that broad

authority. See Charles O. Finley & Co. v. Kuhn, 569 F.2d 527 (7th Cir. 1978)

(upholding baseball commissioner’s “best interests of Baseball” authority). And this

Court has held—even outside the strict standard of review for labor arbitration under


41

the LMRA—that the judiciary must defer to a professional sports league’s

“interpretation of its own rules.” Crouch v. NASCAR, Inc., 845 F.2d 397, 403 (2d

Cir. 1988) (citing Finley). Rather than “decide de novo whether” a league has

correctly applied its own rules, the Court considers only whether league discipline

was imposed “in bad faith or in violation of any local, state or federal laws.” Id. at

402-403. “[A]ny lower standard,” this Court explained, “would create too great a

danger that courts will become mired down in what has been called the ‘dismal

swamp’—the area of a group’s activity concerning which only the group can speak

competently.” Id. at 403. Simply put, “the judiciary should not be [the League’s]

‘umpire and governor.’” Id. (quoting Finley). Whatever the bounds of the

Commissioner’s broad conduct detrimental authority may be, no one can seriously

suggest that he exceeded those bounds by deeming a scheme to tamper with game-

day footballs during a high-profile game and then destroy evidence of that scheme

“conduct detrimental to the integrity of, or public confidence in, the game of

professional football.” JA345.

3. The district court was wrong to second-guess the Commissioner’s application of his Article 46 authority.

The district court strayed even further afield in concluding that the award must

be vacated because Brady lacked “fair notice” that “the Competitive Integrity Policy

… could … serve as the basis for disciplinary action against him.” See SPA30. The

Commissioner could not have been clearer about the contractual authority for his


42

decision, and it was manifestly not the Competitive Integrity Policy. Instead, as the

Commissioner reiterated over and over (and over and over) in his final decision,

Brady was disciplined under Article 46 of the CBA. See SPA43, 46, 54, 58-59 n.19,

61. To be sure, the Wells investigation, which concerned the actions of the entire

Patriots organization, was conducted pursuant to the Competitive Integrity Policy—

and understandably so since that policy governs “investigations of competitive

violations by clubs.” SPA58 n.19. But the mere fact that the Commissioner relied

on a report prepared pursuant to an investigation under the Competitive Integrity

Policy into the actions of the Patriots and all those affiliated with the club and

implicated in this incident does not somehow convert his decision regarding Brady’s

conduct and discipline into an application of that policy. The district court’s refusal

to accept that the Commissioner was in fact applying the provision that he discussed

repeatedly throughout his decision is inexplicable, but in all events makes the court’s

view that the Competitive Integrity Policy “could not serve as the basis for

disciplinary action” wholly beside the point. SPA30.

The district court’s insistence that the award must be justified only by the

Wells Report’s “general awareness” finding is similarly inexplicable. See SPA26-

27. The Commissioner expressly found that “Mr. Brady knew about, approved of,

consented to, and provided inducements and rewards in support of” the scheme to

tamper with game balls. SPA51. As the district court itself recognized, the


43

Commissioner’s finding “goes far beyond the ‘general awareness’ finding in the

Wells Report or in Vincent’s May 11, 2015 Disciplinary Decision Letter to Brady.”

SPA17. In fact, the Wells Report itself went “far beyond the ‘general awareness’

finding” on which the district court premised its conclusions. Id. The Wells Report

also found that “it is unlikely that [McNally and Jastremski] would deflate game

balls without Brady’s knowledge and approval” or that the two equipment workers

“would personally and unilaterally engage in such conduct in the absence of Brady’s

awareness and consent.” JA114 (emphasis added). In all events, the

Commissioner’s finding had obvious support in the evidence that came to light

between the initial discipline and the arbitral hearing—i.e., that Brady had obstructed

the investigation by destroying his cell phone—and the Commissioner

unquestionably had discretion to consider that new evidence under the CBA. See,

e.g., Misco, 484 U.S. at 39-40; Saint Mary Home, 116 F.3d at 45.

Finally, the district court was wrong to question the Commissioner’s reliance

on Article 46 instead of the player equipment policy. The district court’s evident

preference for what it perceived to be the more specific equipment policy over the

more general conduct detrimental authority is just one more example of the district

court overstepping its limited role under the LMRA. Under the Act, labor arbitrators

are tasked with interpreting and applying the relevant contractual provisions, which

certainly includes the ability to determine which of two potentially applicable


44

contractual provisions to invoke. Federal courts do not review such decisions de

novo; instead, so long as the contractually-designated arbitrator’s interpretation has

a plausible basis in the contract, the courts are obligated to uphold the arbitrator’s

decision. Here, the Commissioner interpreted Article 46 of the CBA to encompass

Brady’s misconduct, and he rejected the Players Association’s argument that only a

fine could be imposed under the equipment policy. The Commissioner’s use of his

Article 46 authority, moreover, was not even arguably inconsistent with the player

equipment policy; in addition to listing fines for specific conduct, the equipment

policy expressly recognizes the Commissioner’s authority to issue suspensions

based on the facts of a violation. See JA370, 389.

When an arbitrator “resolves disputes regarding the application of a contract,”

he exercises the heart of his discretion under the LMRA. Garvey, 532 U.S. at 509.

“Because the authority of arbitrators is a subject of collective bargaining, just as is

any other contractual provision, the scope of the arbitrator’s authority is itself a

question of contract interpretation that the parties have delegated to the arbitrator.”

W.R. Grace & Co. v. Local Union 759, Int’l Union of the United Rubber, Cork,

Linoleum & Plastic Workers of America, 461 U.S. 757, 765 (1983). And a federal

court has no power to disturb the arbitrator’s efforts to reconcile contractual

provisions even if the “‘court is convinced he committed serious error.’” Eastern


45

Associated Coal Corp. v. United Mine Workers of America, Dist. 17, 531 U.S. 57,

62 (2000) (quoting Misco, 484 U.S. at 38).

Here, there was no error, let alone a serious one. Even accepting the notion

that deflating game balls is an “equipment violation,” there was manifestly more

going on here than that. Brady participated in a scheme to interfere with the officials’

ability to enforce rules going to the very heart of the game, and then not only refused

to cooperate with the investigation into that scheme, but also affirmatively

obstructed that investigation by destroying highly relevant evidence. Although the

Commissioner’s decision to act pursuant to his Article 46 authority was eminently

reasonable, that is not the test under the LMRA. The Commissioner indisputably

had authority to discipline Brady’s conduct under Article 46. While he could have

forgone that authority in favor of equipment policies crafted for more minor

offenses, he was under no obligation to do so. Once the Commissioner chose to

proceed under Article 46, the district court had no basis to displace that decision.

Especially given that the Commissioner is uniquely entrusted with protecting the

integrity of the game, the choice between the two contractual provisions is a

quintessential interpretive decision that “[a] federal court may not second-guess.”

W.R. Grace, 461 U.S. at 765.


46

II. The Commissioner’s Procedural Rulings Provide No Basis For Vacating His Final Decision.

The LMRA requires, if anything, an even more deferential standard of review

when it comes to collateral attacks on an arbitrator’s procedural rulings. “[W]hen

the subject matter of a dispute is arbitrable,” as here, “‘procedural’ questions which

grow out of the dispute and bear on its final disposition are to be left to the

arbitrator.” Misco, 484 U.S. at 40; see also John Wiley & Sons, Inc. v. Livingston,

376 U.S. 543, 557 (1964). That is because “grievance and arbitration procedures,”

no less than a contract’s substantive provisions, “are part and parcel of the ongoing

process of collective bargaining.” Misco, 484 U.S. at 38. The parties are free to

specify certain procedural rules, and they are free to leave others to the arbitrator’s

discretion. But in both instances, it is ultimately the arbitrator’s “judgment and all

that it connotes that [the parties] bargained for.” Steelworkers v. American Mfg. Co.,

363 U.S. at 568; see also AT&T Techs., Inc. v. Communications Workers, 475 U.S.

643, 649-50 (1986). And the Commissioner is in a much better position than the

courts to understand the procedural rules of the CBA that he is regularly called on to

interpret and apply. See Crouch, 845 F.2d at 403. Thus, absent fraud or a complete

departure from the contract, the Commissioner’s procedural rulings must be

respected.


47

A. The District Court Had No Authority—And No Grounds—To Second-Guess the Commissioner’s Evidentiary Ruling.

The district court was wrong to second-guess the Commissioner’s decision

not to compel Pash’s testimony, a ruling which was inextricably intertwined with the

Commissioner’s factual findings. The CBA does not require the testimony of any

witnesses in an Article 46 hearing, let alone of every witness that the parties ask to

present. Instead, it leaves the question of what testimony is appropriate to the

hearing officer—which, under Article 46, may be the Commissioner. The

Commissioner plainly articulated and applied a contractually permissible approach

in resolving that question, which was based on his factual findings about which

potential witnesses had personal knowledge of the relevant facts. He agreed to

compel the testimony of the two individuals with personal knowledge of the facts at

hand (Wells and Vincent), but declined to compel the testimony of the two without

such personal knowledge (Pash and himself). And in an abundance of caution, the

Commissioner offered to “revisit” that ruling should testimony at the hearing reveal

that he was mistaken in his understanding that Pash played no substantive role in the

Wells investigation.

The district court did not begin to explain how that ruling could be considered

so far outside the bounds of what the CBA contemplates that it could not even be

said to be “plausibly grounded in the parties’ agreement.” Wackenhut, 126 F.3d at

32. Indeed, the court did not even explain how the Commissioner’s ruling could


48

constitute an abuse of discretion, let alone a complete and utter failure to “even

arguably constru[e] or apply[] the contract.” Misco, 484 U.S. at 38. Instead, the

court once again impermissibly substituted its own views for “the arbitrator’s view

of the facts and of the meaning of the contract that [the parties] have agreed to

accept.” Id. at 37-38.

According to the district court, “NFL precedent demonstrates that, in Article

46 arbitration appeals, players must be afforded the opportunity to confront their

investigators,” and “to present evidence and cross-examine adverse witnesses.”

SPA33. But even setting aside the fact that only the arbitrator, not the court, is

authorized to interpret arbitral precedent and determine what it requires, see, e.g.,

Wackenhut, 126 F.3d at 32, Brady received precisely the opportunity that the district

court believed the precedents require: He had the opportunity to confront Wells, and

the Commissioner found as a matter of fact that Wells, not Pash, was the investigator.

Specifically, the Commissioner found that Wells “supervised the investigation and

preparation of the Investigative Report that serves as the basis for Mr. Brady’s

discipline,” while Pash’s “role was limited to facilitating access by Mr. Wells to

witnesses and documents.” SPA63. Because the subjects on which Brady was

allowed to confront Wells included the topic of Pash’s role, the Commissioner found

that Pash’s testimony would be cumulative.


49

The Commissioner expressly offered to reopen his ruling on the Pash

testimony if the examination of Wells undermined the Commissioner’s factual

determination about Pash’s role. Brady never even tried to take advantage of that

opportunity—even after Wells testified that Pash had reviewed and commented on a

draft of the investigative report. The Commissioner was clearly in the bounds of his

authority as the contractually designated hearing officer to deem the issue waived.

See, e.g., Misco, 484 U.S. at 40; Am. Postal Workers Union, AFL-CIO v. U.S. Postal

Serv., 754 F.3d 109, 114 (2d Cir. 2014). Thus, the district court’s ruling ignored a

factual finding about Pash’s role that the district court was powerless to disturb, the

opportunity to confront Wells about Pash’s role, and the failure to try to reopen the

matter based on Wells’s testimony. That trifecta of errors demonstrates the wisdom

of decades of precedents making clear that the arbitrator’s factual findings and

procedural rulings are not subject to judicial second-guessing.

Rather than explain how the Commissioner’s actions came even close to

crossing the line of failing to “draw[] [their] essence from the collective bargaining

agreement,” Misco, 484 U.S. at 36, the district court simply refused to accept the

Commissioner’s view of the facts. Indeed, the court would not even accept the

notion that Wells was the principal investigator, instead insisting on referring to the

investigation as the “Pash/Wells Investigation,” SPA2, 3, 5, 27 n.8, 28 n.19, 35, 36,

and referring to Pash as “co-lead investigator,” SPA12, 14, 32, 34, 35—all because


50

a press release issued before the investigation suggested that Pash would co-lead it

and because Wells testified that Pash had provided minor comments on a draft of the

Wells Report. But the Commissioner expressly considered that press release, and

expressly considered the other facts before him, and concluded that Pash did not

“play a substantive role in the investigation that led to Mr. Brady’s discipline.”

SPA63. The LMRA prohibits the district court from substituting its own views for

“the arbitrator’s view of the facts.” Misco, 484 U.S. at 37.

Even if that were not the case, the district court’s conclusion that the

Commissioner’s ruling was so prejudicial as to warrant vacatur of his final decision

is inexplicable. The best the district court could say was that examining Pash may

have allowed Brady to “explor[e]” whether the Wells investigation was “truly

‘independent.’” SPA35. But whether the investigation was or was not “independent”

is irrelevant. Nothing in the CBA requires the League to authorize or an arbitrator

to rely on only “independent” investigations; in fact, hearing officers routinely rely

on investigations conducted by the League itself. Moreover, the Commissioner

made an express finding that he would have reached the same conclusion whether

or not the investigation was “independent” because the Wells Report provided a

“thorough and reliable” account of the relevant facts. SPA60 n.20. The district court

did not even acknowledge that finding, let alone explain how the exclusion of Pash’s

testimony could possibly be prejudicial (or even erroneous) when the factfinder


51

himself had explicitly found that the only matter on which Pash was even arguably

in a position to testify would have had no bearing on his ultimate conclusions.

B. The District Court Had No Authority—And No Grounds—To Second-Guess the Commissioner’s Discovery Ruling.

The district court’s ruling on the disclosure of Paul Weiss internal work

product was equally unlawful. The Commissioner’s denial of the request for that

discovery was, once again, indisputably based on an effort to interpret and apply the

CBA. Indeed, the Commissioner employed precisely the sort of interpretive tools

that a federal court would apply to discern the meaning of a contractual command.

That the district court may disagree with the conclusions the Commissioner reached,

or the manner in which he applied those conclusions to the facts at hand, is an

entirely insufficient basis to reject them.

In resolving the discovery issue, the Commissioner began, as any contractual

interpretation analysis should, with the plain text of the CBA. Article 46, §2(f)(ii)

specifies the evidence that must be disclosed in an Article 46 arbitration hearing: “In

appeals under Section 1(a), the parties shall exchange copies of any exhibits upon

which they intend to rely….” JA346. That is it. The Commissioner sensibly

interpreted that provision to indicate that more extensive discovery is not required.

Second, he confirmed his conclusion based on context, as the CBA reveals that “the

parties agreed to permit much more extensive discovery in other kinds of

proceedings,” but not for appeals under Section 1(a). SPA65. Third, the


52

Commissioner considered the purpose behind the provision, which “anticipates a

reasonably efficient, expedited appeal proceeding conducted before a Commissioner

who may be (and in this case is) a business executive rather than a lawyer.” Id. And

finally, he found support in prior precedent. In the Ray Rice matter, Retired District

Judge Barbara Jones, serving as the hearing officer, reached the same conclusion

about the limited nature of discovery that Article 46 contemplates. In light of that

conclusion, the Commissioner found Appellees’ request inconsistent with the narrow

scope of discovery appropriate under Article 46.

The Commissioner also went on to explain in detail why he would not

consider the request appropriate even if the CBA contemplated the possibility of

broader discovery in Article 46 proceedings. As he explained, the League had

already “produced all of the NFL documents considered by the investigators in

preparing their report, including notes of interviews conducted by in-house NFL

investigators prior to the time that the Paul, Weiss investigation began.” Id. The

dispute before him related only to internal work product generated by Paul Weiss

itself during the course of the investigation—i.e., notes and memoranda that the

lawyers produced as they considered the materials and interviewed the witnesses.

That kind of attorney work product would not be discoverable even in an ordinary

legal proceeding, and the Commissioner found absolutely nothing in the CBA that

supported, let alone compelled, a different result here—particularly since the


53

material had not been considered as part of the disciplinary process and the Players

Association did not even “identif[y] any material factual dispute that Paul, Weiss’

internal work product would help to resolve.” SPA66.

The notion that these conclusions were somehow so far outside the bounds of

what Article 46 contemplates as to warrant vacatur of the Commissioner’s decision

is unfathomable. The Commissioner’s extensive legal and factual analysis would

readily withstand scrutiny under a standard far more demanding than the “even

arguably construing or applying the contract” standard that governs here. Misco,

484 U.S. at 38. Surely a trial court would act well within its discretion to deny a

similar request to turn over the internal attorney work product that was created

during the course of an investigation or preparation for a hearing. The district court

did not even attempt to identify anything in the CBA that contemplates a different

result here—let alone compels one in terms so unassailable that any decision to

disallow the discovery could not even be “plausibly grounded in the parties’

agreement.” Wackenhut, 126 F.3d at 32. The district court egregiously overstepped

the bounds of its proper role. Where lower courts have committed a similar error,

appellate courts have not hesitated to reverse. See, e.g., id.; Misco, 484 U.S. at 40;

Am. Postal Workers, 754 F.3d at 114. The court should do so here.


54

III. This Court Should Order Enforcement Of The Commissioner’s Award.

Because it ruled for Appellees on the three issues discussed above, the district

court did not resolve their other collateral attacks: (1) that the Commissioner could

not rely on his factual conclusion that Brady participated in the scheme to tamper

with game balls because, according to Appellees, the Wells Report did not reach that

conclusion, and (2) that the Commissioner was “evidently partial” and incapable of

fairly arbitrating the dispute. SPA38-39. But if this Court reverses the district court,

it need not remand for consideration of those additional questions. The issues were

fully briefed below, and the arguments are plainly meritless. Indeed, for many of the

reasons that Appellees’ arguments must be rejected on the three issues addressed by

the district court, they must be rejected on the remaining issues as well.

Appellees argued below that the Commissioner could not rely on his factual

finding—based, in part, on the newly discovered evidence that Brady destroyed his

cell phone—that “Brady participated in ball tampering” because, in their view, the

Wells Report did not include such a definitive conclusion. JA73-74. But this

argument is incorrect both as a matter of fact and as a matter of law. While the Wells

Report concluded that Brady was “generally aware” of McNally and Jastremski’s

actions, it also concluded that “it is unlikely that an equipment assistant and a locker

room attendant would deflate game balls without Brady’s knowledge and approval,”

and thus that McNally and Jastremski acted with “Brady’s awareness and consent.”


55

JA114 (emphasis added). Appellees are therefore simply wrong to argue that the

Wells Report and the Commissioner’s initial disciplinary letter rested “solely” on a

“general awareness” finding. JA73-74. They were based on knowledge, approval,

awareness, and consent—all of which supported the Commissioner’s finding that

Brady participated in the scheme.

In all events, though, the Commissioner was not required to limit his review

to the Wells Report’s factual findings. Under Article 46 of the CBA, he was

permitted to consider the new evidence that came to light at the hearing that Brady

had willfully obstructed the investigation by destroying evidence and failing to

inform investigators of its destruction—and he was permitted to draw adverse

inferences based on that new information. Nothing in the CBA prohibits the

Commissioner from considering new evidence during an Article 46 hearing. In fact,

the entire point of holding a hearing is to present new evidence for the

Commissioner’s consideration. It cannot be that the Commissioner may consider

only evidence that is favorable to the player being disciplined—particularly when,

as here, the player himself is the one that introduced the evidence. At most, this was

a “‘procedural’ questio[n] which gr[ew] out of the dispute” and was thus “to be left

to the arbitrator.” Misco, 484 U.S. at 40. Indeed, in Saint Mary Home, this Court

rejected a similar attack on an arbitrator’s consideration of evidence that arose after

the initial disciplinary decision. See 116 F.3d at 45. As with his evidentiary and


56

discovery rulings, the Commissioner’s discretionary decision to consider the new

evidence cannot be disturbed.

Appellees’ attacks on the Commissioner’s impartiality are also meritless.

Appellees argued that the Commissioner could not fairly arbitrate the matter because

they had accused him of “delegating” his disciplinary authority to Vincent. JA86.

They also argued that the Commissioner’s public statements thanking Wells for his

thorough investigation “locked him into supporting the Wells Report and rendered

him incapable of reaching a contrary conclusion.” JA86-87. The Commissioner

rejected both of these contentions as unfounded, and neither can serve as the basis

for vacating his award. The Commissioner explained that he “did not delegate [his]

authority as Commissioner to determine conduct detrimental or to impose

appropriate discipline.” SPA59. Nor did he prejudge anything merely by thanking

Wells and his team for their investigative work. See SPA68-69. There can be no

dispute that the Commissioner was in the best position to make these factual

determinations, given that they concerned the exercise of his disciplinary power.

Ultimately, Appellees’ partiality arguments cannot be squared with the reality

that the CBA expressly gives the Commissioner contractual discretion to serve as

the hearing officer in Article 46 appeals. The parties agreed to give the

Commissioner that authority even though they recognized that he would often need

to take steps or make statements concerning a high profile investigation or dispute


57

before meting out discipline or hearing an appeal under Article 46. “[T]he parties to

an arbitration choose their method of dispute resolution, and can ask no more

impartiality than inheres in the method they have chosen.” Williams v. National

Football League, 582 F.3d 863, 886 (8th Cir. 2009) (rejecting evident-partiality

challenge where Pash served as Commissioner’s designee in player discipline

hearing) (quotation marks omitted); see also Aviall, Inc. v. Ryder System, Inc., 110

F.3d 892, 896-97 (2d Cir. 1997).

Appellees cannot superimpose standards developed to question the partiality

of third-party arbitrators on the Article 46 process. The CBA does not give the

Commissioner the authority to make determinations about conduct detrimental

because he is a completely detached decisionmaker. The CBA, like comparable

provisions in other sports leagues’ CBAs, gives him this authority because he is the

Commissioner. He is impartial between clubs and between players, but he is

expected to be deeply involved with running the League—which in the case of high

profile disputes will inevitably involve actions having some bearing on the

investigation of the controversy. Article 46 could not function as intended if an

allegation of partiality were sufficient to eliminate the Commissioner’s discretion to

serve in a role the CBA expressly grants to him. Instead, the Commissioner is

entitled to the same deference in handling such issues as with other issues that arise

in the arbitral proceedings. Absent “bad faith” or “affirmative misconduct,” the test


58

is whether the Commissioner’s determinations are grounded in the CBA. Misco,

484 U.S. at 40; see also, e.g., Saint Mary Home, 116 F.3d at 44-45. Applying that

test, none of the issues raised by Appellees—neither the three arguments the district

court accepted nor the two it deferred—are even close.

This Court has taken the efficient approach of disposing of alternative

arguments without a remand in previous arbitration cases. For instance, in

Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 218 (2d Cir. 2002), after

reversing a district court decision vacating an arbitration award, then-Judge

Sotomayor disposed of the challengers’ three “alternative grounds” for vacating the

award “[b]ecause these arguments were fully briefed below and on appeal, and

because [this Court found] them to be without merit.” The same is true here. And

because Appellees’ alternative arguments raise “purely legal issue[s]”—and

meritless ones at that—the Court would be especially justified in exercising its

discretion to decide those issues in the first instance. Booking v. General Star

Management Co., 254 F.3d 414, 419 (2d Cir. 2001).

Resolving the issues now, moreover, would serve the interests of judicial

economy, which the Court has previously viewed as a factor for deciding alternative

arguments without a remand. See, e.g., Bacolitsas v. 86th & 3rd Owner, LLC, 702

F.3d 673, 681 (2d Cir. 2012) (citing Petrosino v. Bell Atlantic, 385 F.3d 210, 224 (2d

Cir. 2004)). This case requires a prompt resolution, as the Court recognized when it


59

expedited this appeal. Remanding these meritless issues to the district court would

add unnecessary time and expense to proceedings that should have ended with the

Commissioner’s arbitration award. This Court can and should order that the

Commissioner’s decision be enforced.

CONCLUSION

For the reasons set forth above, this Court should reverse the district court’s

decision and order that the Commissioner’s award be enforced.

Respectfully submitted,


s/Paul D. Clement PAUL D. CLEMENT ERIN M. MURPHY MICHAEL H. MCGINLEY BANCROFT PLLC 500 New Jersey Avenue, NW Seventh Floor Washington, DC 20001 (202) 234-0090 [email protected]


October 26, 2015


CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION

I hereby certify that:

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7) because it contains 13,904 words, excluding the parts of the brief exempted

by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6) because it has

been prepared in a proportionally spaced typeface using Microsoft Word 2013 in 14-

point font.

October 26, 2015

s/ Michael H. McGinley Michael H. McGinley



I hereby certify that, on October 26, 2015, an electronic copy of the foregoing

Brief for Appellants was filed with the Clerk of Court using the ECF system and

thereby served upon all counsel appearing in this case.

s/Paul D. Clement Paul D. Clement


15-2801(L) 15-2805, 15-3228 (Con)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

________________ NATIONAL FOOTBALL LEAGUE MANAGEMENT COUNCIL,

Plaintiff-Counter-Defendant-Appellant, and

NATIONAL FOOTBALL LEAGUE, Defendant-Appellant,

and MICHELLE MCGUIRK,

Appellant, v.

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

Defendant-Counter-Claimant-Appellee,and

TOM BRADY, Counter-Claimant-Appellee.

________________

On Appeal from the United States District Court for the Southern District of New York, Nos. 15-5916, 15-5982

________________

SPECIAL APPENDIX ________________

[cover continued on next page]



PAUL D. CLEMENT ERIN E. MURPHY MICHAEL H. MCGINLEY BANCROFT PLLC 500 New Jersey Avenue, NW Seventh Floor Washington, DC 20001 (202) 234-0090 [email protected]


October 26, 2015


i

TABLE OF CONTENTS

Amended Decision and Order ............................................................................ SPA1

Judgment .......................................................................................................... SPA41

Final Decision on Article 46 Appeal of Tom Brady ........................................ SPA42

Article 46 Appeal of Tom Brady, Re: Decision on Hearing Witnesses and Discovery .................................................................................................. SPA62

Article 46 Appeal of Tom Brady, Re: Decision on NFLPA’s Motion to Recuse .............................................................................................................. SPA67


UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------)( NATIONAL FOOTBALL LEAGUE MANAGEMENT COUNCIL,

Plaintiff,

- v.-

NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION,

Defendant.

-------------------------------------------------------)(

I. Introduction

USDC SDNY DOCUMENT ELECTRO:--.IICALLY fiLED

~~~::FILED: -ifl-;u-r AMENDED DECISION & ORDER

15 Civ. 5916 (RMB) (JCF)

15 Civ. 5982 (RMB) (JCF)

This Decision and Order resolves the parties' respective cross-motions to confirm and to

vacate NFL Commissioner Roger Goodell's July 28, 2015 Arbitration Award imposing a four-

game suspension on New England Patriots quarterback Tom Brady, pursuant to Section 301 of

the Labor Management Relations Act, 29 U.S.C. § 185, and Section 10 of the Federal Arbitration

Act, 9 U.S.C. § 10.1

In reaching its decision, the Court has reviewed the record herein, including without

limitation, (a) the investigation concerning allegedly deflated footballs used during the AFC

Championship Game on January 18,2015 between the New England Patriots ("Patriots") and the

1 On July 28, 2015, the National Football League Management Council ("Management Council" or "Plaintiff') filed a Complaint in the United States District Court for the Southern District of New York seeking to confirm the arbitration award. On July 29,2015, the National Football League Players Association ("Players Association" or "Defendant") filed a Petition to Vacate Arbitration Award in the United States District Court for the District of Minnesota. The Minnesota matter was immediately transferred to this district, under docket number 15 Civ. 5982, by U.S. District Judge Richard H. Kyle pursuant to the "first to file" rule. See National Football League Players Association v. National Football League Management Council, Civ. No. 15-3168 (RHKIHB), slip op. at 2 (D. Minn. July 30, 2015).

Case 1:15-cv-05982-RMB-JCF Document 9 Filed 09/03/15 Page 1 of 40

SPA1


Indianapolis Colts ("Colts"), initiated by the National Football League ("NFL" or "League") and

co-led by NFL Executive Vice President and General Counsel Jeff Pash and Theodore V. Wells,

Jr. of Paul, Weiss, Rifkin, Wharton & Garrison ("Pash/Wells Investigation" or "Investigation");

(b) the 139-page written report, dated May 6, 2015, which was the end product of the Pash/Wells

Investigation ("Wells Report" or "Report"); (c) the letter, dated May II, 2015, from NFL

Executive Vice President Troy Vincent ("Vincent") to Patriots quarterback Tom Brady

("Brady") imposing a four-game suspension on Brady ("Vincent's Disciplinary Decision Letter"

or "Vincent's Letter to Brady"); (d) the letter, dated May I I, 2015, from Vincent to Robert K.

Kraft ("Kraft"), owner of the Patriots, imposing on the Patriots Club a fine of$ I ,000,000 and

forfeiture of the first round "pick" in the 2016 NFL draft and the fourth round "pick" in the 2017

NFL draft; (e) the transcript of the arbitration hearing that took place on June 23, 2015 before

NFL Commissioner Roger Goodell ("Goodell"), who had designated himself as arbitrator of

Brady's appeal; (t) Goodell's Final Decision on Article 46 Appeal of Tom Brady, dated July 28,

2015 ("Final Decision" or "Award"), which affirmed Brady's four-game suspension; (g) the

Management Council Complaint, dated July 28, 20I5, seeking confirmation of the Award; (h)

the Players Association Amended Answer and Counterclaim, dated August 4, 2015, seeking

vacatur of the Award ("Def.'s Countercl."); (i) the Players Association's Memorandum of Law

in Support of Motion to Vacate Arbitration Award, dated August 7, 20I5 ("Def.'s Mem. Supp.");

(j) the Management Council's Memorandum of Law in Support of Motion to Confirm and in

Opposition to Motion to Vacate, dated August 7, 2015 ("Pl.'s Mem. Supp.); and (k) the further

written submissions of the parties. The Court has also heard helpful oral argument from counsel

on August I2, 20I5 and on August 19, 20I5.

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Based upon the foregoing and applicable legal authorities, the Court hereby denies the

Management Council's motion to confirm the Award and grants the Players Association's

motion to vacate the Award, thereby vacating the four-game suspension ofT om Brady,

effective immediately.

II. Background

Pash/Wells Investigation & Wells Report

Shortly after the conclusion of the AFC Championship Game on January 18, 2015, senior

NFL officials undertook an extensive (reportedly $3+ million) investigation into the

circumstances surrounding the use by the Patriots of seemingly under-inflated footballs during

that game's first half. On January 23,2015, the NFL publicly announced that it had retained

Theodore V. Wells, Jr. and his law firm to conduct an "independent" investigation, together with

NFL Executive Vice President and General Counsel JeffPash. Wells Report at I.

The Investigation specifically was conducted pursuant to the NFL Policy on Integrity of the

Game & Enforcement of Competitive Rules, dated February II, 2014 ("Competitive Integrity

Policy"), which provides, in part:

Policy on Integrity of the Game & Enforcement of Competitive Rules

The following updated memorandum was sent on February II, 2014 to Chief Executives, Club Presidents, General Managers, and Head Coaches from Commissioner Goodell regarding the Policy on Integrity of the Game & Enforcement of Competitive Rules ...

Actual or suspected violations will be thoroughly and promptly investigated. Any club identifying a violation is required promptly to report the violation, and give its full support and cooperation in any investigation. Failure to cooperate in an investigation shall be considered conduct detrimental to the League and will subject the offending club and responsible individual(s) to appropriate discipline.

Competitive Integrity Policy at A2-A3; see also Report at 22.

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The Competitive Integrity Policy is found in Section A2 of the Game Operations Policy Manual

for Member Clubs (20 14 Edition) ("Game Operations Manual"). 2

The Wells Report includes the following narrative: During the course of the January 18,2015

AFC Championship Game, Colts linebacker D'Qwell Jackson intercepted a pass thrown by

Patriots quarterback Tom Brady. The intercepted ball was apparently handed to the Colts

equipment staff, who used a pressure gauge and determined that the football was inflated to

approximately II psi, i.e., below the range of 12.5 to 13.5 psi specified in Rule 2, Section I of

the 2014 NFL Official Playing Rules ("Playing Rules"). NFL officials collected and tested

eleven Patriots game balls and four Colts game balls at halftime and concluded that all eleven of

the Patriots' game balls measured below 12.5 psi. The balls were re-inflated to approximately 13

psi and placed back in play. 3 Wells Report at 63-70.

2 The Game Operations Manual also provides the following as to game balls:

Once the balls have left the locker room, no one, including players, equipment managers, ball boys, and coaches, is allowed to alter the footballs in any way. If any individual alters the footballs, or if a non-approved ball is used in the game, the person responsible and, if appropriate, the head coach or other club personnel will be subject to discipline, including but not limited to, a fine of$25,000.

Game Operations Manual at A39-A40.

3 Brady's passing performance during the game improved during the second half, after the footballs had been re-inflated. See Wells Report at 122 n.73 ("We were not asked by the NFL to investigate the potential competitive impact of the deflation of Patriots game balls and, therefore, do not make any findings or reach any conclusions on that issue. Nevertheless, we note that Brady's performance in the second half of the AFC Championship Game- after the Patriots game balls were re-inflated- improved compared to his performance in the first half. Specifically, in the first half, he completed II of 21 passes for 95 yards and one touchdown, and in the second half, he completed 12 of 14 passes for 131 yards and two touchdowns.").

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On May 6, 2015, the findings of the Pash/Wells "independent" Investigation were made

public. 4 The Investigation included reviews of player equipment, security footage, text

messages, call logs, emails, press conferences, League rules and policies, and interviews with no

less than sixty-six Patriots and NFL personnel. The Wells Report was accompanied by a

separately commissioned analysis prepared by the consulting firm "Exponent."

The Wells Report concluded, among other things, that "in connection with the AFC

Championship Game, it is more probable than not that New England Patriots personnel

participated in violations of the Playing Rules and were involved in a deliberate effort to

circumvent the rules." Wells Report at 2. It determined that Patriots employees Jim McNally

("McNally"), who was the Officials Locker Room attendant, and John Jastremski ("Jastremski"),

who was a Patriots equipment assistant in charge of footballs, "participated in a deliberate effort

to release air from Patriots game balls after the balls were examined by the referee [on January

18, 2015]." id.

As to Brady, the Wells Report concluded that "it is more probable than not that Brady

was at least generally aware of the inappropriate activities of McNally and Jastremski

involving the release of air from Patriots game balls." !d. at 17 (emphasis added). The Wells

Report also concluded that "it is unlikely that an equipment assistant and a locker room attendant

would deflate game balls without Brady's knowledge and approval." ld. at 19.

The Wells Report acknowledged that "there is less direct evidence linking Brady to

tampering activities than either McNally or Jastremski." 5 !d. at 17. It also stated that "[t]he

4 Mr. Pash reviewed a draft and made written edits to the Wells Report prior to its release to the public. See discussion infra pp. 32-33.

5 On August 12,2015, in response to the Court's question "Is there any direct evidence linking Mr. Brady to tampering," Daniel R. Nash of Akin Gump Strauss Hauer & Feld, representing the

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evidence does not allow us to reach conclusions as to when McNally and Jastremski began their

efforts to release air from Patriots game balls on game day ... exactly how long those efforts

have been ongoing, how frequently they occurred, how the idea originated or the full scope of

communication related to those efforts." I d. at I 6-17.

Brady has denied "any knowledge of or involvement in any efforts to deflate game balls after

the pre-game inspection by the game officials." ld. at 129.

The Wells Report exonerated all (other) members of the Patriots staff. "[W]e do not believe

there was any wrongdoing or knowledge of wrongdoing by Patriots ownership, Head Coach

Belichick or any other Patriots coach in the matters investigated. We also do not believe there

was any wrongdoing or knowledge of wrongdoing by Patriots Head Equipment Manager David

Schoenfeld." Id. at 122.

Also, after investigating questions raised during the January 18, 2015 AFC Championship

Game regarding one of the kicking balls, the Wells Report concluded that there was "no

evidence to support any finding of wrongdoing with respect to the kicking ball." Id. at 132.

The Wells Report relied, in part, upon videotapes showing McNally entering and remaining

inside a restroom with the game balls for approximately I minute and 40 seconds on his way to

the playing field prior to the start of the AFC Championship Game. It also spotlighted text

Management Council, answered, "If you are asking, your Honor, is there a text or e-mail in which Mr. Brady specifically instructs somebody to put a needle in a football after the game official checked it? No, there is not such direct evidence." Aug. 12, 2015 Hr'g Tr. 22:3-9.

Mr. Nash also stated, "[o]ne of the things that gets ignored about the Wells Report- and it is certainly true and the Commissioner's decision explains this is the fact- that there may not be a specific smoking gun ... does not mean that there is not evidence of culpability here." !d. at 22:24-23:4.

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messages between McNally and Jastremski from 2014, including, among others, several texts

which date back three to eight months prior to the AFC Championship Game.

The Wells Report also summarized testing and analysis performed by Exponent. 6 Exponent

concluded that "the reduction in pressure of the Patriots game balls cannot be explained

completely by basic scientific principles, such as the Ideal Gas Law, based on the circumstances

and conditions likely to have been present on the day of the AFC Championship Game." !d. at

130. At the same time, the Wells Report acknowledged that "(o]ur 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 tampering, as the analysis of such data is ultimately

dependent upon assumptions and information that is uncertain." ld. at 131 (emphasis

added).

Following the issuance of the Wells Report on May 6, 2015, both McNally and Jastremski

were indefinitely suspended without pay by the Patriots. 7

Vincent Letter to Kraft

On May I I, 2015, Vincent wrote a disciplinary decision letter to Patriots owner Robert K.

Kraft. Vincent advised Kraft that "[o]n May 6, independent investigator Ted Wells issued his

report regarding the footballs used by the Patriots in this year's AFC Championship Game. That

report established that the footballs used by the Patriots were inflated at a level that did not

'According to the Wells Report, Exponent examined, among other things, (I) measurement of the magnitude of the reduction in air pressure of Patriots game balls compared to Colts game balls, (2) the potential impact of game-day use and other physical factors which might reasonably be expected to affect the internal air pressure of footballs, (3) the potential impact of environmental factors on the day of the AFC Championship Game, (4) a statistical and physical analysis of the gauges used to measure the air pressure of the footballs pre-game and at halftime, and (5) how quickly an individual could partially deflate footballs in a ball bag using a sports ball inflation needle. Wells Report at 9-12.

7 See Vincent Letter to Robert K. Kraft, discussed infra pp. 7-9.

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satisfy the standard set forth in the NFL's Official Playing Rules and that the condition of the

footballs was the result of deliberate actions by employees of the Patriots." Vincent Letter to

Kraft at I.

Vincent informed Kraft that the NFL had "determined that the Patriots have violated the

NFL's Policy on Integrity of the Game and Enforcement of Competitive Rules [Competitive

Integrity Policy], as well as the Official Playing Rules and the established guidelines for the

preparation of game footballs set forth in the NFL's Game Operations Policy Manual for

Member Clubs." ld. Vincent wrote that, "(i]n making this determination, (the NFL has)

accepted the findings contained in the comprehensive report independently prepared by

Mr. Wells and his colleagues." I d. (emphasis added).

Vincent explained that the NFL "regard[s] violations of competitive rules as significant and

deserving of a strong sanction, both to punish the actual violation and to deter misconduct in the

future." ld. Vincent described "several factors that merit strong consideration in assessing

discipline. The first is the club's prior record. In 2007, the club and several individuals were

sanctioned for videotaping signals of opposing defensive coaches .... " ld. Vincent also

identified "two significant failures" concerning "the extent to which the club and relevant

individuals cooperated with the [Pash!W ells] investigation," namely (I) "the refusal by the

club's attorneys to make Mr. McNally available for an additional interview, despite numerous

requests by Mr. Wells and a cautionary note in writing of the club's obligation to cooperate in

the investigation," and (2) "the failure ofT om Brady to produce any electronic evidence (emails,

texts, etc.) despite being offered extraordinary safeguards by the investigators to protect

unrelated personal information." Id. at 2-3. Vincent also stated that "it remains a fundamental

principle that the club is responsible for the actions of club employees." I d. at 3.

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The Vincent Letter to Kraft imposed the following discipline: (I) "for the violation of the

playing rules and the failure to cooperate in the subsequent investigation, the New England

Patriots are tined $1,000,000 and will forfeit the club's first round selection in the 2016 NFL

Draft and the club's fourth round selection in the 2017 NFL Draft," and (2) "neither (McNally

nor Jastremski] may be reinstated without my prior approval. If and when he resumes working

for the Patriots, Mr. Jastremski is prohibited from having any role in the preparation, supervision,

or handling of footballs to be used in NFL games during the 2015 season .... Mr. McNally is

barred from serving as a locker room attendant for the game officials, or having any involvement

with preparation, supervision, or handling of footballs or any other equipment on game day." I d.

at 3.

Vincent Letter to Brady

On May II, 2015, Vincent sent a (separate) "disciplinary decision" letter to Brady, stating:

"The Commissioner has authorized me to inform you of the discipline that, pursuant to his

authority under Article 46 of the CBA [Collective Bargaining Agreement], has been imposed on

you for your role in the use of under-inflated footballs by the Patriots in this year's AFC

Championship Game. This activity represents a violation of longstanding playing rules

developed to promote fairness in the game." Vincent Letter to Brady at I; see also Award at I.

The Vincent Letter to Brady referred directly to the Wells Report and its "general awareness"

finding, and stated: "With respect to your particular involvement, the [R]eport established that

there is substantial and credible evidence to conclude you "'ere at least generally aware of the

actions of the Patriots' employees involved in the deflation of the footballs and that it was

unlikely that their actions were done without your knowledge. Moreover, the [R]eport

documents your failure to cooperate fully and candidly with the investigation, including by

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refusing to produce any relevant evidence ( emails, texts, etc.) despite being offered extraordinary

safeguards by the investigators to protect unrelated personal information, and by providing

testimony that the (R]eport concludes was not plausible and contradicted by other evidence." Id.

Vincent concluded that: "Your actions as set forth in the (R]eport clearly constitute conduct

detrimental to the integrity of and public confidence in the game of professional football." 8 I d.

Vincent informed Brady that "pursuant to the authority of the Commissioner under Article 46

of the Collective Bargaining Agreement and [the] NFL Player Contract, you are suspended

without pay for your club's first four games of the 2015 regular season."9 I d. at 2.

The Arbitral Process

On May 14,2015, Brady, through the Players Association, appealed the four-game

suspension. Def.'s Countercl. ~ 14. Thereupon, Commissioner Goodell designated himself as

arbitrator to hear Brady's appeal pursuant to CBA Art. 46 § 2(a), which provides that "the

8 Paragraph 15 of the standard NFL Player Contract states as follows:

Player recognizes the detriment to the League and professional football that would result from impairment of public confidence in the honest and orderly conduct of NFL games or the integrity and good character of NFL players. Player therefore acknowledges his awareness that if he accepts a bribe or agrees to throw or fix an NFL game; fails to promptly report a bribe offer or an attempt to throw or fix an NFL game; bets on an NFL game; knowingly associates with gamblers or gambling activity; uses or provides other players with stimulants or other drugs for the purpose of attempting to enhance on-field performance; or is guilty of any other form of conduct reasonably judged by the League Commissioner to be detrimental to the League or professional football, the Commissioner will have the right, but only after giving Player the opportunity for a hearing at which he may be represented by counsel of his choice, to fine Player in a reasonable amount; to suspend Player for a period certain or indefinitely; and/or to terminate this contract.

CBA App. A,~ 15.

9 The suspension was to apply to games on September I 0, 2015 (Pittsburg Steelers); September 20, 2015 (Buffalo Bills); September 27, 2015 (Jacksonville Jaguars); and October II, 2015 (Dallas Cowboys). See SCHEDULE & STATS, http://www.patriots.com/schedule-and-stats.

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Commissioner may serve as hearing officer in any appeal under Section I (a) of this Article at his

discretion."

On May 19, 2015, Patriots owner Robert Kraft is reported to have stated that "I don't want to

continue the rhetoric that's gone on for the last four months. I'm going to accept, reluctantly,

what he [Commissioner Goodell] has given to us [the Patriots' organization], and not continue

this dialogue and rhetoric, and we won't appea1." 10

Brady's Motion for Recusal

On May 19,2015, the Players Association filed a motion seeking Goodell's recusal from

arbitrating Brady's appeal, arguing (I) "You cannot lawfully arbitrate whether you committed a

CBA violation by delegating exclusive conduct detrimental disciplinary powers to Troy

Vincent," (2) "You cannot lawfully arbitrate a hearing in which you are a central witness," (3)

"You cannot lawfully arbitrate issues which you have publicly prejudged" [apparently referring

to Commissioner Goodell's public comments on May 6, 2015 about the Wells Report: "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"], and ( 4) "You cannot lawfully arbitrate a matter implicating the

competence and credibility of NFL staff." 11 Def.'s Countercl. Ex. 157.

10 See Braden Campbell, Full text of Robert Kraft's statement accepting NFL's Deflategate punishment, Boston.com (May 19, 2015, 2:24PM), http://www. boston.com/ sports/football/patriots/20 I 5/05/19/fu 11-text -robert -kraft -statementaccepting-nfl-deflategate-punishment/j7ilso2vPuGvdFPU6hNqRK/story.html.

11 In other NFL arbitrations, including In the Matter of Ray Rice ("Ray Rice") and In the Matter of New Orleans Saints Pay-for-Performance ("Bounty-Gate"), Commissioner Goodell recused himself, and appointed, as independent arbitrators, former U.S. District Judge Barbara S. Jones and former NFL Commissioner Paul J. Tagliabue.

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On June 2, 2015, Commissioner Goodell issued his "Decision on NFLPA's Motion to

Recuse," concluding that "[o]ur Collective Bargaining Agreement provides that 'at his

discretion,' the Commissioner may serve as hearing officer in 'any appeal' involving conduct

detrimental to the integrity of, or public confidence in, the game of professional football. I will

exercise that discretion to hear Mr. Brady's appeal." 12 I d., Ex. 160 at I.

Brady's Discovery Motion(s)

On May 22, 2015, Brady, through the Players Association, requested "[a]ll Documents

created, obtained, or reviewed by NFL investigators (including by Mr. Wells and his

investigative team at the Paul, Weiss firm and NFL security personnel) in connection with the

Patriots Investigation (including all notes, summaries, or memoranda describing or

memorializing any witness interviews)." Id., Ex. 159, at 2.

Brady also moved to compel the testimony of NFL Executive Vice President and General

Counsel Jeff Pash ("Pash") (and of Ted Wells) at the arbitral hearing. Mr. Pash, a Harvard-

trained lawyer, former partner at Covington & Burling LLP, and a senior executive of the NFL,

as noted, had been designated co-lead investigator alongside Wells. ld., Ex. 166 at 3-6; Ex. 181

12 Commissioner Goodell also determined that (I) "the identity of the person [Vincent] who signed the disciplinary letter is irrelevant," (2) "there can be no dispute that this is an appeal of Commissioner discipline: as the letter signed by Mr. Vincent explains in its first sentence, 'The Commissioner has authorized me to inform you ... ," (3) "I did not delegate my disciplinary authority to Mr. Vincent; I concurred in his recommendation and authorized him to communicate to Mr. Brady the discipline imposed under my authority as Commissioner," (4) "I am not a necessary or even an appropriate witness, much less a 'central witness' as the NFLPA contends . . . (as]! do not have any first-hand knowledge of any of the events at issue ... (n]or did I play a role in the investigation that led to Mr. Brady's discipline," and (5) "(n]or have I 'prejudged' this appeal. I have publicly expressed my appreciation to Mr. Wells and his colleagues for their thorough and independent work. But that does not mean that I am wedded to their conclusions or to their assessment of the facts. Nor does it mean that, after considering the evidence and argument presented during the appeal, I may not reach a different conclusion about Mr. Brady's conduct or the discipline imposed." !d., Ex. 160 (emphasis added).

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(January 23, 2015 NFL Press Release stating: 'The investigation is being led jointly by NFL

Executive Vice President JeffPash and Ted Wells .... "). The NFLPA sought testimony from

Pash regarding "(i) the NFL's involvement in the Paul, Weiss firm's work in connection with the

Patriots Investigation and (ii) the League's prior punishment or lack of punishment concerning

the incidents described in Document Requests 4 and 5 ... [Document Request 4: "All documents

concerning all prior incidents- whether implicating players, Clubs, or Club personnel -

involving alleged or actual violations of NFL playing rules involving equipment, apparel, or

other game-day playing items (including, but not limited to, footballs, tees, gloves, helmets,

pads, eyewear, and cleats/turf shoes), regardless of whether discipline was ultimately assessed."

ld., Ex. 166 at 3. Document Request 5: "All documents concerning all prior incidents involving

an alleged failure to cooperate (including, but not limited to, any alleged failure to produce

electronic information) on the part of an NFL player in an NFL investigation, regardless of

whether or not discipline was ultimately assessed." !QJ." 13 I d., Ex. 166 at 4.

On June 22, 2015, Commissioner Goodell denied Brady's document request. Goodell cited

to CBA Article 46, noting "[i)n appeals under Section 1(a), the parties shall exchange copies of

any exhibits upon which they intend to rely no later than three (3) calendar days prior to the

hearing." Id., Ex. 208 at 4. Goodell stated that "the collective bargaining agreement provides

for tightly circumscribed discovery and does not contemplate the production of any other

documents in an Article 46 proceeding other than under these terms. In short, on the basis of my

Jl At the time of the document request, the Players Association may have been unaware that Mr. Pash had "reviewed a draft of the Wells Report and provided Paul, Weiss with comments prior to the Report's public release." See Def.'s Countercl. ~ 161 (citing Award at 19 n.21; June 23,2015 Hr' g Tr. 268: 17-25); see also discussion infra pp. 32-33.

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interpretation of the Collective Bargaining Agreement, I deny the NFLPA's motion for

discovery." ld.

Commissioner Goodell also identified "other independent ground" for his decision to deny

discovery. "First, I did not review any of Paul, Weiss' internal interview notes or any other

documents generated by Paul, Weiss other than their final report. The Paul, Weiss interview

notes played no role in the disciplinary decisions; the Wells Report was the basis for those

decisions. [Cf. discussion infra p. 17 (regarding Goodell's reliance upon "the available electronic

evidence, coupled with information compiled in the investigators' interviews")]. The

Management Council has produced to the NFLPA that report, which contains a detailed

accounting of witness comments, and Mr. Wells will be available to testify about the substance

and conclusions of the report. In addition, I understand that the Management Council produced

all of the NFL documents considered by the investigators in preparing their report, including

notes of interviews conducted by in-house NFL investigators prior to the time that the Paul,

Weiss investigation began." ld. (emphasis added).

Commissioner Goodell granted the motion to compel the testimony of Wells, but denied the

motion to compel the testimony of designated co-lead investigator Pash. With regard to Pash,

Commissioner Goodell contended "[b]ecause Article 46 of our Collective Bargaining Agreement

does not address the permitted scope of witness testimony at appeals hearings, it is within the

reasonable discretion of the hearing officer [Goodell] to determine the scope of the presentations

and, where appropriate, to compel the testimony of any witnesses whose testimony is necessary

for a hearing to be fair." I d. at I. Goodell stated that "Jeff Pash, the NFL's general counsel,

does not have any first-hand knowledge of the events at issue here. Nor did he play a substantive

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role in the investigation that led to Mr. Brady's discipline; his role was limited to facilitating

access by Mr. Wells to witnesses and documents." Jd. at 2.

Arbitral Hearing

On June 23,2015, an arbitration appeal hearing was conducted before Commissioner (and

Arbitrator) Goodell. The hearing included the testimony of Vincent, Brady, and Wells, as well

as Dr. Daniel R. Marlow, Professor of Physics at Princeton University, Dr. Edward A. Snyder,

Dean of the Yale School of Management, Dr. Robert D. Caligiuri, Vice President of Exponent,

and Dr. Duane Steffey, Director of the Statistical and Data Sciences Group at Exponent.

Paul, Weiss acted as counsel to the NFL at the hearing. See June 23,2015 Hr'g Tr. 267:15-

20, 279:14-18; see also discussion infra pp. 37-38 (regarding Paul, Weiss's dual and seemingly

inconsistent roles as "independent" investigator and counsel to the NFL). Paul, Weiss partner

Lorin L. Reisner, a member of the investigative team and a co-author of the Wells Report,

conducted the cross-examination(s) of Brady and Dr. Snyder, and he conducted the direct

examination(s) of Dr. Caligiuri, Dr. Steffey, and Dr. Marlow, on behalf of the NFL.

At the hearing, the Players Association, represented by Jeffrey L. Kessler of Winston &

Strawn, argued that Brady had been disciplined pursuant to the Competitive Integrity Policy

which is provided "to Chief Executives, Club Presidents, General Managers, and Head

Coaches." Competitive Integrity Policy at A2. As a player, Brady was not provided with the

Competitive Integrity Policy. Brady instead received the 2014 NFL League Policies for Players

("Player Policies"). 14 Kessler contended:

14 The Player Policies state, under the heading "Other Uniform/Equipment Violations," the following:

League discipline may also be imposed on players whose equipment, uniform, or On Field violations are detected during postgame review of video, who repeat violations on

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This is called League Policies for Players [Player Policies]. This is what the players are given. And it's interesting. It said 'for players.' What is not here is the competitive integrity rule [Competitive Integrity Policy] that Mr. Wells used in his report or anything about it...and it's clear Mr. Wells didn't use this (Player Policies]; he used the other one [Competitive Integrity Policy) ... And by the way, the fine is $5,512 for the first offense. That's it. That's the only notice that a player has ever had about anything regarding equipment is in the [P]Iayer's [P)olic[ies] ....

June 23,2015 Hr'g Tr. 25:12-24,26:16-22.

Goodell's Award or Final Decision

On July 28,2015, Commissioner Goodell published a 20-page Award or Final Decision on

Article 46 Appeal of Tom Brady, which, as noted, upheld Brady's four-game suspension. In the

Award, Goodell states, among other things, (I) "[i]n appeals of Commissioner discipline under

Article 46, the hearing officer gives appropriate deference to the findings of the disciplinary

decision under review; that is so even when the Commissioner serves as hearing officer [i.e., as

in this case)," (2) "I am bound, of course, by standards of fairness and consistency of treatment

among players similarly situated," (3) "[i)t bears emphasis [] that my finding of tampering with

the game balls is not based solely on the Exponent study and the testimony of the scientific

experts, but instead on consideration of all of the evidence in the record, including the conduct,

text messages, and other communications discussed in both the Wells Report and at the hearing,"

(4) "it is unlikely that an equipment assistant and a locker room attendant would deflate game

balls without Brady's knowledge and approval and that Mr. McNally and Mr. Jastremski would

not personally and unilaterally have engaged in such conduct in the absence of Brady's

the same game day after having been corrected earlier, or who participate in the game despite not having corrected a violation when instructed to do so. First offenses will result in fines.

ld. at 15 (emphasis in original).

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awareness and consent," (5) "[t]he most significant new information that emerged in connection

with the appeal was evidence that on or about March 6, 2015 -the very day that that he was

interviewed by Mr. Wells and his investigative team- Mr. Brady instructed his assistant to

destroy the cellphone that he had been using since early November 2014, a period that included

the AFC Championship Game and the initial weeks of the subsequent investigation," and (6)

"the conduct at issue here- specifically the willful destruction of potentially relevant evidence

goes well beyond Mr. Brady's failure to respond to or fully cooperate with the investigation."

Award at I, 5, 7-9, 17 (emphasis added).

Goodell determined that "the available electronic evidence, coupled with information

compiled in the investigators' interviews, leads me to conclude that Mr. Brady knew about,

approved of, consented to, and provided inducements and rewards in support of a scheme

by which, with Mr. Jastremski's support, Mr. McNally tampered with the game balls." Id.

at I 0 (emphasis added). This finding by Goodell goes far beyond the "general awareness"

finding in the Wells Report or in Vincent's May II, 2015 Disciplinary Decision Letter to Brady.

Compare A ward at I 0 with Report at 2 and Vincent Letter to Brady at I.

Goodell went on to say: "Neither the NFL nor any NFL member club has subpoena power or

other means to compel production of relevant materials or testimony. Nonetheless, the NFL is

entitled to expect and insist upon the cooperation of owners, League employees, club employees

and players in a workplace investigation and to impose sanctions when such cooperation is not

forthcoming, when evidence is hidden, fabricated, destroyed, when witnesses are intimidated or

not produced upon reasonable request, or when individuals do not provide truthful information."

ld. at 13. Goodell contended: "There should be no question in anyone's mind that active

obstruction of a conduct detrimental investigation may and will itself be deemed conduct

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detrimental and subject to discipline, as the standard Player Contract provides, by a fine in a

reasonable amount, by suspension for a period certain or indefinitely, or by termination of the

player's contract." !d. at 17.

As for discipline, Goodell stated "I am very aware of, and believe in, the need for

consistency in discipline for similarly situated players." I d. at 14. "In terms of the appropriate

level of discipline, the closest parallel of which I am aware is the collectively bargained

discipline imposed for a first violation of the policy governing performance enhancing

drugs [four-game suspension) .... " I d. at 16 (emphasis added).

Commissioner Goodell concluded as follows: "(I) Mr. Brady participated in a scheme to

tamper with the game balls after they had been approved by the game officials for use in the

AFC Championship Game, and (2) Mr. Brady willfully obstructed the investigation by, among

other things, affirmatively arranging for destruction of his cellphone knowing that it contained

potentially relevant information that had been requested by the investigators." ld. at 13. "All of

this indisputably constitutes conduct detrimental to the integrity of, and public confidence in, the

game of professional football," stated Goodell. ld. (emphasis added).

III. Legal Standard

"Although judicial scrutiny of arbitration awards necessarily is limited, such review is

sufficient to ensure that arbitrators comply with the requirements of the statute at issue." Gilmer

v. Interstate/Johnson Lane Corn., IllS. Ct. 1647, 1655 (1991) (quoting Shearson/Am. Express

Inc. v. McMahon, I 07 S. Ct. 2332, 2340 (1987)). "The deference due an arbitrator does not

extend so far as to require a district court to countenance, much less confirm, an award obtained

without the requisites of fairness or due process." Kaplan v. Alfred Dunhill of London, Inc., No.

96 Civ. 259 (JFK), 1996 WL 640901, at *7 (S.D.N.Y. Nov. 4, 1996).

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Under the Federal Arbitration Act ("FAA''), "the validity of an award is subject to attack

only on those grounds listed in (9 U.S.C.] § 10, and the policy of the FAA requires that an award

be enforced unless one of those grounds is affinnatively shown to exist." Wall Street Assocs.

L.P. v. Becker Paribas Inc., 27 F.3d 845, 849 (2d Cir. 1994). For example, FAA§ I 0 provides

that the Court may vacate an arbitral award "where the arbitrators were guilty of ... refusing to

hear evidence pertinent and material to the controversy." 9 U.S.C. § I O(a)(3). The Court may

also vacate an arbitral award "where there was evident partiality ... " 9 U.S.C. § I O(a)(2).

A "principal question for the reviewing court is whether the arbitrator's award draws its

essence from the collective bargaining agreement, since the arbitrator is not free to merely

dispense his own brand of industrial justice." 187 Concourse Assocs. v. Fishman, 399 F.3d 524,

527 (2d Cir. 2005) (quoting Saint Mary Home. Inc. v. Serv. Emps. Int'l Union. Dist. 1199, 116

F.3d 41, 44 (2d Cir. 1997)). "(A]s the proctor of the bar gain, the arbitrator's task is to effectuate

the intent of the parties. His source of authority is the collective-bargaining agreement, and he

must interpret and apply that agreement in accordance with the 'industrial common law of the

shop' and the various needs and desires of the parties." United States v. Int'l Bhd. of Teamsters.

954 F.2d 801, 809 (2d Cir. 1992) (quoting Alexander v. Gardner-Denver Co., 94 S. Ct. I Oil,

I 022 (1974)) (emphasis omitted).

It is the "law of the shop" to provide professional football players with advance notice of

prohibited conduct and potential discipline. In In the Matter of Reggie Langhorne

("Langhorne"), Arbitrator Richard R. Kasher vacated the discipline of a player who had refused

to take part in practice, holding that the player "was entitled at some time to be placed on notice

as to what consequences would flow from his refusal to participate in ... practice. Any

disciplinary program requires that individuals subject to that program understand, with

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reasonable certainty, what results will occur if they breach established rules." Slip op. at 25

(Apr. 9, 1994). In NFLMC v. NFLPA (Ricky Brown) ("Ricky Brown"), Arbitrator Michael H.

Beck vacated a fine imposed upon a player for missing a mandatory weigh-in, and observed that

"adequate notice is the fundamental concept in discipline cases." Slip op. at I 0 (July 16, 20 I 0).

In the Bounty-Gate case, former NFL Commissioner Paul J. Tagliabue, appointed as

arbitrator by Commissioner Goodell after Goodell had recused himself, vacated the suspension

of a player who had allegedly obstructed the League's investigation into the New Orleans Saints'

bounty program (involving alleged monetary incentives to injure opposing players). Slip op. at I

(Dec. II, 2012). Tagliabue stated: "There is no evidence of a record of past suspensions based

purely on obstructing a League investigation. In my forty years of association with the NFL, I

am aware of many instances of denials in disciplinary proceedings that proved to be false, but I

cannot recall any suspension for such fabrication. There is no evidence of a record of past

suspensions based purely on obstructing a League investigation." ld. at 13.

IV. Analysis

An arbitrator's factual findings are generally not open to judicial challenge, and we accept

the facts as the arbitrator found them. See Westerbeke Corn. v. Daihatsu Motor Co., Ltd., 304

F.3d 200, 213 (2d Cir. 2002); see also Int'l Bhd. of Elec. Workers, Local 97 v. Niagara Mohawk

Power Corn., 143 F.3d 704,726 (2d Cir. 1998).

The Court is fully aware of the deference afforded to arbitral decisions, but, nevertheless,

concludes that the Award should be vacated. The Award is premised upon several significant

legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four

game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to

examine one of two lead investigators, namely NFL Executive Vice President and General

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Counsel Jeff Pash; and (C) denial of equal access to investigative files, including witness

interview notes.

(A) Inadequate Notice of Discipline and Misconduct

(i) No Notice of Four-Game Suspension: Steroid Use Comparison

The Court finds that Brady had no notice that he could receive a four-game suspension for

general awareness of ball deflation by others or participation in any scheme to deflate footballs,

and non-cooperation with the ensuing Investigation. Brady also had no notice that his discipline

would be the equivalent of the discipline imposed upon a player who used performance

enhancing drugs.

During the August 19, 2015 oral argument, it became apparent that no specific determination

was made either in the Vincent's Disciplinary Decision Letter or the Goodell Award as to what

portion of Brady's discipline was attributable to alleged ball tampering and what discipline was

attributable to non-cooperation (and, for that matter, what discipline was attributable to the

destruction of Brady's phone):

Q (Court]:

A [Nash]:

"So which of the four games [suspension] is attributable to ball tampering, and which is attributable to failure to cooperate?"

"Well, the Award doesn't specify, and I don't believe there's any requirement in the CBA to break it down that way. I think the Commissioner makes a judgment, and he says this in the Award, he says taking the record as a whole, considering all of the factors, he determined that a four-game suspension was the appropriate sanction."

Aug. 19,2015 Hr'g Tr. 59:17-25.

At the same time, in upholding Brady's four-game suspension, Commissioner Goodell

concluded that it was appropriate to apply the same discipline that the NFL metes out for steroid

use:

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[T]he closest parallel of which I am aware is the collectively bargained discipline imposed for a first violation of the policy governing performance enhancing drug ... In our most recent Collective Bargaining Agreement, the parties (a) agreed to continue that level of discipline for a first violation [i.e., four-game suspension] and (b) further agreed that a player found to have used both a performance enhancing drug and a masking agent would receive a six-game suspension. The four-game suspension imposed on Mr. Brady is fully consistent with, if not more lenient than, the discipline ordinarily imposed for the most comparable effort by a player to secure an improper competitive advantage and (by using a masking agent) to cover up the underlying violation.

Award at 16 (emphasis added). 15

The Court finds that the NFL's collectively bargained for "Policy on Anabolic Steroids and

Related Substances" ("Steroid Policy") is sui generis. It cannot, as a matter of law, serve as

adequate notice of discipline to Brady. It also cannot reasonably be used as a comparator for

Brady's four-game suspension for alleged ball deflation by others in the first half of the AFC

Championship Game and for non-cooperation in the ensuing Investigation. The Steroid Policy is

incorporated into the 2014 Player Policies, which sets forth in great detail "testing procedures,"

"procedures in response to positive tests or other evaluation," "suspension and related

discipline," "appeal right," "burdens and standards of proof," and "discovery," none of which

"Commissioner Goodell also argued that "the discipline imposed on Mr. Brady is not excessive or without precedent, and is in fact fair and reasonable," citing to (I) a four-game suspension "recently imposed on the General Manager of the Cleveland Browns for a first violation of a league rule intended to maintain fair competition and the integrity of the game" [where General Manager Ray Farmer was disciplined for having sent player substitution and play-calling texts to coaching staff during games], and (2) "similar examples of discipline imposed on coaches for conduct detrimental that bears on the integrity of the game, including the one-year suspension of Sean Payton [Head Coach of the New Orleans Saints] and the six-game suspension of Joe Vitt [Assistant Head Coach & Linebackers Coach of the New Orleans Saints] imposed in connection with the Saints' pay-for-performance bounty program" [where Payton and Vitt were said to have concealed their involvement in the bounty program, and failed to terminate the program when the League first investigated reports of its existence]. Award at 16 n.l7. Commissioner Goodell added: "I do not rely on those examples to determine the discipline imposed on Mr. Brady, but they reinforce my conclusion, based principally on the penalties associated with violations of the steroid policy." ld. (emphasis added).

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has anything to do with Brady's conduct and/or his discipline. See NFL Policy on Anabolic

Steroids and Related Substances at 5-16.

The Court is unable to perceive "notice" of discipline, or any comparability between a

violation of the Steroid Policy and a "general awareness" of the inappropriate activities of others,

or even involvement in a scheme by others to deflate game balls on January 18, 2015, and non-

cooperation in a football deflation investigation. Oral presentations before the Court on August

19, 2015 did little to clarify the Commissioner's reliance upon Steroid Policy disciplinary

measures in Brady's case:

Q [Court]:

A [Nash]:

So I ask you the same question ... how is [the Steroid Policy]like deflating a football and not cooperating? Clearly the question is a fair question to pose because clearly Mr. Goodell felt that he had to explain [Brady's] four-game suspension. And his explanation about steroid use, in my mind, only raised more questions than it answered, because I don't see -I still don't see how the four games is comparable to a player using steroids and a masking agent.

I think in the Commissioner's judgment it goes to the integrity of the game.

Aug. 19,2015 Hr'g Tr. 63:15-25.

The Award offers no scientific, empirical, or historical evidence of any comparability

between Brady's alleged offense and steroid use. Often, steroid use has to do with critical issues

of health, injury, addiction, and peer pressure, among other factors. See Steroid Policy at 1-2

(listing several factors related to the use of "Prohibited Substances," including "a number of

physiological, psychological, orthopedic, reproductive, and other serious health problems, [such as]

heart disease, liver cancer, musculoskeletal growth defects, strokes, and infertility"). None of these

factors is (remotely) present here.

The Court finds that no player alleged or found to have had a general awareness of the

inappropriate ball deflation activities of others or who allegedly schemed with others to let

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air out of footballs in a championship game and also had not cooperated in an ensuing

investigation, reasonably could be on notice that their discipline would (or should) be the

same as applied to a player who violated the NFL Policy on Anabolic Steroids and Related

Substances. Brady had no such notice. "When it is clear that the arbitrator 'must have based his

award on some body of thought, or feeling, or policy, or law that is outside the contract[) and

not incorporated in it by reference ... the arbitrator has failed to draw the award from the

essence of the collective bargaining agreement." In re Marine Pollution Serv., Inc., 857 F.2d 91,

94 (2d Cir. 1988) (quoting Ethyl Com. v. United Steelworkers, 768 F.2d 180, 184-85 (7th Cir.

1985), cert. denied I 06 S. Ct. 1184); see also Bounty-Gate, slip op. at 6 ("In other words, rightly

or wrongly, a sharp change in sanctions or discipline can often be seen as arbitrary and as an

impediment rather than an instrument of change.").

In further support of his claim that there was no notice of his discipline, Brady points to the

testimony of Mr. Wells, who acknowledged the following at the arbitration hearing:

I want to be clear-- I did not tell Mr. Brady at any time that he would be subject to punishment for not giving-- not turning over the documents [emails and texts]. I did not say anything like that.

June 23,2015 Hr'g Tr. 336:19-23.

Brady contends that "[n]o player suspension in NFL history has been sustained for an alleged

failure to cooperate with- or even allegedly obstructing- an NFL investigation." Def.'s Mem.

Supp. 9. As support, he cites to Arbitrator and former NFL Commissioner Tagliabue in the

Bounty-Gate case for the following observation:

In December 2010, the NFL fined Brett Favre $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 fining, not suspending a player, for serious violations of this type. There is no evidence of a record of past suspensions based purely on obstructing a League investigation. In my forty years of association with the NFL, I am aware of many instances of denials in disciplinary proceedings that proved to be false, but I cannot recall any suspension

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

Def.'s Countercl. ~ 129; id., Ex. 113, Bounty-Gate, slip op. at 13 (emphasis in original).

It is the "law of the shop" to provide professional football players with (advance) notice of

prohibited conduct and of potential discipline. See, e.g., Langhorne, slip op. at 25 ("Any

disciplinary program requires that individuals subject to that program understand, with

reasonable certainty, what results will occur if they breach established rules."). Because there

was no notice of a four-game suspension in the circumstances presented here, Commissioner

Goodell may be said to have "dispense[ d) his own brand of industrial justice." 187 Concourse

Assocs., 399 F.3d at 527 (citation omitted). "When the arbitrator's words manifest an infidelity

to this obligation, courts have no choice but to refuse enforcement of the award." United

Steelworkers of Am. v. Enter. Wheel & Car Com., 80 S. Ct. 1358, 1361 (1960).

(ii) No Notice of Any Discernible Infraction

The Players Association argues that "[t]he basis for Brady's punishment was the very narrow

finding in the Wells Report [and reiterated in the Vincent Disciplinary Decision Letter) that

[Brady] was ... 'generally aware' of ball deflation by two members of the Patriots equipment

staff." Def.' s Mem. Supp. 8. No NFL policy or precedent provided notice that a player could be

subject to discipline for general awareness of another person's alleged misconduct. 16

16 During these proceedings, the Court acknowledged some difficulty in understanding the meaning of the Wells Report/Vincent Disciplinary Decision Letter finding of"generally aware":

Q [Court]: I am not sure I understand what in the world that means, that phrase. So, it says: at least generally aware of the inappropriate activities of Mr. McNally and Jastremski involving the release of air from Patriot game balls. So, I don't know what that is. You know, did he [Brady) know that McNally took the balls unaccompanied into the bathroom? Did he know that in the bathroom, if in fact it happened, McNally deflated the balls? Did he know that McNally then went on to the field with the balls?

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The Management Council counters that "[a]ll of [Brady's] 'notice' arguments were carefully

considered and rejected by the Commissioner based on his assessment of the evidence-

including Brady's credibility- and his interpretation of the CBA and past precedent." Pl.'s

Mem. Supp. 5. And, it adds, "[t]he Commissioner did not discipline Brady merely for being

'generally aware' of a violation of the playing rules. Rather, as the Award makes clear, the

Commissioner suspended Brady (I) for having 'approved of, consented to, and provided

inducements in support of 'a scheme to tamper with game balls after they had been approved by

the game officials for use in the AFC Championship Game' and (2) for having 'willfully

obstructed' the subsequent investigation." 17 Id. at 8 (quoting Award at 13, 17-18).

The record is clear that Vincent's Letter to Brady and the Award itself rely upon the Wells

Report finding that Brady was "generally aware" of the alleged ball tampering misconduct of

Patriots equipment staff. Vincent's Letter to Brady unquestionably adopts the Wells Report

finding that "it is more probable than not that Tom Brady (the quarterback for the Patriots) was

at least generally aware of the inappropriate activities of McNally and Jastremski involving the

release of air from Patriots game balls." Compare Wells Report at 2 with Vincent Letter to

A [Nash]:

Q [Court]:

A [Nash]:

He is saying that by the evidence Mr. Brady knew that these individuals were involved in deflating the footballs. He didn't say that ... he didn't say that he knew, he said that ... he was at least generally aware of the inappropriate activities. Generally aware is knew, I believe, your Honor.

Aug. 12, 2015 Hr' g Tr. 24:12-25: I 7 (emphasis in original).

17 The Vincent Letter to Brady- unlike the Award- does not conclude that "Brady knew about, approved of, consented to, and provided inducements and rewards in support of a scheme by which, with Mr. Jastremski's support, Mr. McNally tampered with the game balls." Compare Vincent Letter to Brady with Award at 10. Nor does the Vincent Letter to Brady- unlike the Award- say that Brady "participated in a scheme to tamper with game balls after they had been approved by the game officials for use in the AFC Championship Game .... " Compare Vincent Letter to Brady with Award at 13.

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Brady at I ("With respect to your particular involvement, the [R]eport established that there is

substantial and credible evidence to conclude you were at least generally aware of the actions of

the Patriots' employees involved in the deflation of the footballs and that it was unlikely that

their actions were done without your knowledge."). And Goodell's Final Decision confirms that

"(t]he Wells Report and accompanying material were the product of an extensive and

independent investigation and formed the factual basis for the discipline that was imposed on

both the Patriots and Mr. Brady." Award at 2.

With respect to "general awareness" of others' misconduct- which is the principal finding in

both the Wells Report and the Vincent Letter- Brady had no notice that such conduct was

prohibited, or any reasonable certainty of potential discipline stemming from such conduct. 18

The Court concludes that, as a matter of law, no NFL policy or precedent notifies players that

they may be disciplined (much less suspended) for general awareness of misconduct by others.

And, it does not appear that the NFL has ever, prior to this case, sought to punish players for

such an alleged violation. See Def.'s Countercl. ~ I 04. The absence of such notice violated the

"law of the shop." See Langhorne, slip op. at 25; see also Ricky Brown, slip op. at I 0 ("A rule

must clearly and unambiguously establish the scope of prohibited conduct, as well as the

consequences of violations, in order to be enforceable .... ").

18 With respect to any "scheme" to deflate footballs during the AFC Championship Game, Brady had no notice of a possible four-game suspension, as required by the "law of the shop." See discussion supra pp. 21-24. And, with respect to Brady's non-cooperation with the Pash/Wells Investigation, Brady similarly had no notice of a four-game suspension. See discussion supra pp. 24-25.

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(iii) No Notice of Suspension as Opposed to Fine: Competitive Integrity Policy vs. Player Policies

The Players Association argues that "[u]nder the Player Policies, Brady had notice only of

fines- not suspensions- for player equipment violations designed to gain a competitive

advantage." Def.'s Countercl. ~ I 06. With respect to "Other Uniform/Equipment Violations,"

and as noted supra p. 15 n.l4, the Player Policies state in relevant part, the following:

League discipline may also be imposed on players whose equipment, uniform, or On Field violations are detected during postgame review of video, who repeat violations on the same game day after having been corrected earlier, or who participate in the game despite not having corrected a violation when instructed to do so. First offenses will result in fines.

Player Policies at 15 (emphasis in original).

Under the corresponding "20 14 Schedule of Fines," a first offense of "other uniform/equipment

violations" results in a fine of $5,512. I d. at 20.

The Players Association contends that "[i]nstead of applying the Player Policies, Vincent

punished Brady pursuant to ... violations of the Competitive Integrity Policy, which is only

incorporated into the Game Operations Manual and provided to 'Chief Executives, Club

Presidents, General Managers, and Head Coaches,"' and not to players such as Brady. 19 Def. 's

Countercl. ~ 113.

19 It is undisputed that the Pash/Wells Investigation was undertaken pursuant to the Competitive Integrity Policy, i.e., "pursuant to the Policy on Integrity of the Game & Enforcement of Competitive Rules," which is incorporated into Section A2 of the Game Operations Manual. Wells Report at I. See discussion supra pp. 3-4.

Vincent's testimony at the arbitration hearing on June 23,2015 regarding his suspension letter to Brady confirms that the source of Brady's discipline was the Wells Report, and that the NFL policy relied upon by Vincent was the Competitive Integrity Policy:

Q [Kessler]:

A [Vincent]:

So you based your recommendations of discipline in this letter solely upon reading the Wells report? That's what I wanted to establish. Yes.

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The Management Council responds that the Players Association is "ask[ing] the Court to

reevaluate the evidence and construe past arbitration precedent differently" and that

Commissioner Goodell previously rejected the argument that "the Player Policy regarding

'equipment violations' only put Brady on notice of a potential fine." Pl.'s Mem. Supp. 5.

Goodell also contends that the Competitive Integrity Policy was "not the source or basis for the

discipline imposed here." Id. at 6. Rather, he says, the general "conduct detrimental" standard

was the source of Brady's discipline. I d. Goodell argued: "Mr. Brady had notice, and in fact

was fully aware of, the established rule governing the pressure of NFL games [sic] balls ... and

[had) ample reason to expect that a violation of that rule ... would be deemed conduct

detrimental." ld. (quoting Award at 18) (emphasis added).

A player's right to notice is at the heart of the CBA and, for that matter, of our criminal and

civil justice systems. While "[m]any controversies have raged about the cryptic and abstract

words of the Due Process Clause ... there can be no doubt that at a minimum they require that

deprivation of life, liberty or property by adjudication be preceded by notice .... " Texaco. Inc.

June 23, 2015 Hr'g Tr. 244:19-22.

Q [Kessler]:

A [Vincent]: Q (Kessler]:

A [Vincent]:

Now, the policy that you cite in your letter, in your discipline letter regarding Mr. Brady ... [w]here do you find the policy that says that footballs can't be altered with respect to pressure? Is that going to be in the Competitive Integrity Policy that Wells cited in his report? Game-Day Operations Manual. In the manual? Okay. Is it correct, to your knowledge, that the manual is given to clubs and GMs and owners, etcetera, but the manual is not given out to players; is that correct, to your knowledge? That's correct, to my knowledge.

.!.Q_, at 250:13-251: I (emphasis added).

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v. Short, 102 S. Ct. 781,795 (1982) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 70S.

Ct. 652, 656 (1950)); see also Lankford v. Idaho, Ill S. Ct. 1723, 1729 (1991 ).

Brady was on notice that equipment violations under the Player Policies could result in fines.

See discussion supra p. 28. He had no legal notice of discipline under the Competitive Integrity

Policy, which is incorporated into the Game Operations Manual and distributed solely to- and,

therefore, provides notice to- "Chief Executives, Club Presidents, General Managers, and Head

Coaches," and not to players. 20 Game Operations Manual at A2.

NFL arbitral precedent confirms that because Brady did not have notice of the Competitive

Integrity Policy, that Policy could not serve as the basis for disciplinary action against him.

Judge Jones (in Ray Rice) and U.S. District Judge DavidS. Doty (in NFLPA v. NFL (Adrian

Petersion)) ("Adrian Peterson") each held that the increased NFL penalties set forth in a "new"

policy for domestic violence [New NFL Personal Conduct Policy (Aug. 20 I 4 )] could not be

applied to Rice and Peterson, respectively, because these players (only) had notice of discipline

under the 2007 Personal Conduct Policy. "[T]he Commissioner has acknowledged that he did

not have the power to retroactively apply the New Policy: The policy change was forward

looking because the League is required to provide proper notice." Adrian Peterson, No. Civ. 14-

4990 (DSD/JSM), 2015 WL 795253, at *5 (D. Minn. Feb. 26, 2015) appeal docketed, No. 15-

1438 (8th Cir. Feb. 27, 2015) (internal citations omitted); see also Ray Rice, slip op. at 7, 16

(same). Judge Doty held that "[t]his determination is consistent with prior NFL arbitration

decisions recognizing the importance of notice in advance of discipline." Adrian Peterson, 2015

WL 795253, at *5 n.4.

"As noted, the Patriots Club and its management were, in fact, sanctioned under the Competitive Integrity Agreement for "violation of the playing rules [related to ball tampering] and[] failure to cooperate in the subsequent investigation." See discussion supra pp. 7-9.

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Conduct Detrimental

Commissioner Goodell contends that Brady's discipline stems from the general CBA policy

precluding players from engaging in any conduct that is "detrimental to the integrity of, or public

confidence in, the game of professional football." Pl.'s Mem. Supp. 3 (citing CBA Art. 46

§I (a)). Goodell states that"[ n]o prior conduct detrimental proceeding is directly comparable to

this one," Award at 14, and, in doing so, he draws a distinction between "[t]he conduct at issue

here" and "the [foot]ball-warming incident in Minnesota last year, in which a Carolina Panthers

ball attendant was observed warming a ball on the Vikings' sideline; there 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." !d. at 15 (emphasis in original). The Players Association

counters that the Panthers matter helps to prove its point regarding notice as, "[t]he NFL sent a

warning to the Club .. . [and] [n]o ... players were either investigated or punished. This[] was

consistent with the Competitive Integrity Policy's application to Clubs and the lack of any

'general awareness' standard." Def.'s Countercl. ~ 117 (emphasis in original).

Commissioner Goodell contends that "[t]he conduct at issue here is also very different from

the incident involving the Jets' equipment staff member who 'attempted to use' unapproved

equipment in plain view of the officials to prepare kicking balls prior to a 2009 game against the

Patriots. There was no evidence of any player involvement. However, it bears mention that the

Jets' employee was suspended from his regular game-day duties for a period longer than the

suspension under review here." Award at 15. The Players Association counters that "the Jets'

kicker- the player who could have benefitted from the alleged 'attempt to gain a competitive

advantage' -was not investigated, let alone disciplined. This was perfectly consistent with the

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Competitive Policy's application to Clubs [and Club personnel], not players." Def.'s Countercl.

'lf 116 (emphasis in original).

Goodell's reliance on notice of broad CBA "conduct detrimental" policy- as opposed to

specific Player Policies regarding equipment violations- to impose discipline upon Brady is

legally misplaced. In both the Ray Rice case and the Adrian Peterson case, the players could,

perhaps, be said to appreciate that acts of domestic violence might be deemed "conduct

detrimental." And yet, in both of these cases, the players were disciplined only after findings

were made under the specific domestic violence policy [New NFL Personal Conduct Policy

(Aug. 2014)]. See Adrian Peterson, 2015 WL 795253, at *5-6; Ray Rice, slip op. at 16. Rightly

so, because an applicable specific provision within the Player Policies is better calculated to

provide notice to a player than a general concept such as "conduct detrimental." See In re

Lehman Bros. Holdings Inc., 76 I F.3d 303, 313 (2d Cir. 20 14) cert. denied sub nom. Giddens v.

Barclays Capital Inc., 135 S. Ct. 2048 (20I5) ("To the extent that there appears to be conflict

between these provisions, the specific governs the general."); John Hancock Mut. Life Ins. Co. v.

Carolina Power & Light Co., 717 F.2d 664, 670 n.8 (2d Cir. I 983) ("Where the parties have

particularized the terms of a contract an apparently inconsistent general statement to a different

effect must yield.").

(B) Commissioner Goodell Improperly Denied Brady the Opportunity to Examine Designated Co-Lead Investigator Jeff Pash

The Players Association contends that Commissioner Goodell's denial of the testimony of

JeffPash at the arbitral hearing was fundamentally unfair because (I) "the NFL publically

declared that NFL Executive Vice President and General Counsel Jeff Pash was the co-lead

investigator on the Wells-Pash Investigation," and (2) Pash was allowed to review a draft of the

Wells Report and to provide Paul, Weiss with written comments or edits prior to the Report's

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release to the public. Def.'s Countercl. ~~ 159, 161 (citing Award at 19 n.21; June 23, 2015 Hr'g

Tr. 268:17-25).

The Management Council responds that Mr. Wells "testified that Pash had played 'no

substantive role in the investigation,' and any comments he may have provided on a draft of the

report 'did not impact' the Paul, Weiss findings," and that "[i]n light of the fact that 'arbitrators

have substantial discretion to admit or exclude evidence,' the decision not to have cumulative

testimony from Pash is not subject to challenge." Pl.'s Mem. of Law in Supp. at II (quoting

Kolel Beth Yechiel Mechil ofTartikov.lnc. v. YLL Irrevocable Trust, 729 F.3d 99, 107 (2d Cir.

2013)) (emphasis added).

In determining what evidence to admit, "[a]n arbitrator need not follow all the niceties

observed by the federal courts." Tempo Shain Com. v. Bertek. Inc., 120 F.3d 16, 20 (2d Cir.

1997) (quoting Bell Aerospace Co. Div. of Textron v. Local516, 500 F.2d 921,923 (2d Cir.

1974)). "However, although not required to hear all the evidence proffered by a party, an

arbitrator 'must give each of the parties to the dispute an adequate opportunity to present its

evidence and argument."' !d. (quoting Hote1es Condado Beach v. Union De Tronquistas Local

901, 763 F.2d 34, 39 (I st Cir. 1985). "A fundamentally fair hearing requires that the parties be

permitted to present evidence and cross-examine adverse witnesses." Kaplan, 1996 WL 640901,

at *5; see also Tempo Shain, 120 F.3d at 20 ("[T]here was no reasonable basis for the arbitration

panel to determine that ... omitted testimony would be cumulative .... [T]he arbitration panel

must "indicate in what respects [] testimony would be cumulative.") (emphasis added).

NFL precedent demonstrates that, in Article 46 arbitration appeals, players must be afforded

the opportunity to confront their investigators. See, e.g., Def.'s Countercl. Ex. 1660, Bounty

Gate Pre-Hr'g Order No.4 (in which former NFL Commissioner Tagliabue, acting as arbitrator,

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ordered that Jeffrey Miller, Lead Investigator and NFL Vice President of Security, be compelled

to testify). In the Ray Rice case, Judge Jones held that the "key elements of a' fundamentally

fair hearing"' include a grievant's ability to "present evidence and cross-examine witnesses," and

that an arbitrator should "compel[] the witnesses necessary for the hearing to be fair." Def. 's

Countercl. Ex. 166E, Ray Rice Order on Discovery and Hearing Witnesses at 1-2 (quoting

Kaplan, 1996 WL 640901, at *5). Judge Jones ordered Commissioner Goodell to testify in the

Ray Rice arbitration and concluded that "[t]o limit the available witnesses knowledgeable about

the content of that meeting to the individuals the NFL is willing to produce would prevent Mr.

Rice from presenting his case and runs the risk of providing an incomplete picture of the content

of a meeting that both parties have identified as critical." !d.

The Court finds that Commissioner Goodell's denial of Brady's motion to compel the

testimony of Mr. Pash was fundamentally unfair and in violation of9 U.S.C. § I O(a)(3). Given

Mr. Pash's very senior position in the NFL, his role as Executive Vice President and General

Counsel, and his designation as co-lead investigator with Ted Wells, it is logical that he would

have valuable insight into the course and outcome of the Investigation and into the drafting and

content of the Wells Report. It is also problematic to the Court that there was no specification by

Goodell as to the ways Pash's testimony would have been "cumulative."

The Management Council does not deny that Mr. Pash provided edits to the Wells Report, in

advance of its release. The testimony from Mr. Wells is illustrative:

Q [Kessler]: Do you know what the contents were of (Mr. Pash's] comments?

A [Wells]: I do not, except to say that they couldn't have been that big a deal because I don't think I heard about them. But, you know, Mr. Pash is a very good Harvard-trained lawyer. If you give a Harvard-trained lawyer a report this thick, he's going to have some kind of comment. So I assume whatever it was, it was some kind of wordsmithing. I can tell you this without waiving any privilege.

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June 23,2015 Hr'g Tr. 269:4-13.

The Court recognizes that arbitrators are "endowed with discretion to admit or reject

evidence and determine what materials may be cumulative or irrelevant." Abu Dhabi Inv. Auth.

v. Citigroup. Inc., No. 12 Civ. 283 (GBD), 2013 WL 789642, at *8 (S.D.N.Y. Mar. 4, 2013)

affd, 557 F. App'x 66 (2d Cir. 2014) cert. denied, 135 S. Ct. 137, 190 L. Ed. 2d 45 (2014).

However, the NFL fairly cannot suggest, without more than the testimony of the NFL's retained

counsel, that the edits from Mr. Pash were not significant or that his testimony would have been

"cumulative." Pl.'s Mem. Supp. II. Mr. Wells acknowledged that he did not know the content

of Mr. Pash's pre-release edits, and thus there was simply "no reasonable basis for the arbitration

panel to determine that ... [the] omitted testimony would be cumulative." See Tempo Shain,

120 F.3d at 20.

Denied the opportunity to examine Pash at the arbitral hearing, Brady was prejudiced. He

was foreclosed from exploring, among other things, whether the Pash/Wells Investigation was

truly "independent," and how and why the NFL's General Counsel came to edit a supposedly

independent investigation report. Def.'s Countercl. ~ 162; Report at I ("[The Report] was

prepared entirely by the Paul, Weiss investigative team and presents the independent opinions of

Mr. Wells and his colleagues."). Brady was also prejudiced because there was no other witness,

apart from Pash, who was as "competent to address the substantive core of the claim." See

Commercial Risk Reinsurance Co. v. Sec. Ins. Co. of Hartford, 526 F. Supp. 2d 424,429

(S.D.N.Y. 2007). As co-lead investigator and senior executive with the NFL, Pash was in the

best position to testify about the NFL's degree of involvement in, and potential shaping of, a

heralded "independent" Investigation. The issues known to Pash constituted "evidence plainly

pertinent and material to the controversy," Tempo Shain, 120 F.3d at 19 (quoting 9 U.S.C. §

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I O(a)(3)), and Commissioner Goodell's refusal to hear such evidence warrants vacatur of the

Award under 9 U.S.C. § IO(a)(3).

(C) Commissioner Goodell Improperly Denied Brady Equal Access to Investigative Files

As noted at supra pp. 13-14, Commissioner Goodell denied the Players Association's request

for documents, memoranda, summaries, or notes of witness interviews created during the

Pash/Wells Investigation, contending, among other things, that "[t]he Paul, Weiss interview

notes played no role in the disciplinary decisions; the Wells Report was the basis for those

decisions." Def.'s Countercl. Ex. 208, at 4; but see discussion supra p. 17 (regarding information

"compiled in the investigators' interviews").

Brady contends that, to his detriment, he was denied the opportunity effectively to challenge

the conclusions of the Wells Report and that such denial "was especially egregious considering

the NFL's counsel [the Paul, Weiss firm] at the arbitration did have access to the files," which

Brady was seeking. Def.'s Mem. Supp. 12-14 (emphasis in original). The Court notes that the

Paul, Weiss role in this case seems to have "changed" from "independent" investigators to

NFL's retained counsel at the arbitral hearing. Among other things, this change in roles may

have afforded Goodell (and Pash) greater access to valuable impressions, insights, and other

investigative information which was not available to Brady.

Courts have held that "[t]he absence of statutory provision for discovery techniques in

arbitration proceedings obviously does not negate the affirmative duty of arbitrators to insure

that relevant documentary evidence in the hands of one party is fully and timely made available

to the other party .... [A] failure to discharge this simple duty would constitute a violation of

FAA§ IO(a}(3}, where a party can show prejudice as a result." Home lndem. Co. v. Affiliated

Food Distribs., Inc., No. 96 Civ. 9707 (RO), 1997 WL 773712, at *4 (S.D.N.Y. Dec. 12, 1997)

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(citing Chevron Transp. Com. v. Astro Vencedor Compania Naviera, S.A .. 300 F. Supp. 179,

181 (S.D.N.Y. 1969)).

The Court finds that Commissioner Goodell's denial of the Players Association's motion to

produce the Paul, Weiss investigative files, including notes of witness interviews, for Brady's

use at the arbitral hearing was fundamentally unfair and in violation of9 U.S.C. § IO(a)(3) and

that Brady was prejudiced as a result. The interview notes were, at the very least, the basis for

the Wells Report, and Brady was prejudiced by his lack of access to them. Brady was denied the

opportunity to examine and challenge materials that may have led to his suspension and which

likely facilitated Paul, Weiss attorneys' cross-examination of him. Because the investigative

files included the unedited accounts of the witness interviews, the Wells testimony at the arbitral

hearing failed to put Brady "in the same position as the document[s] would [have]." See

Postlewaite v. McGraw-Hill, Inc., No. 98 Civ. 0611 (LLS), 1998 WL 751687, at *4 (S.D.N.Y.

Oct. 28, 1998) affd sub nom. Postlewaite v. McGraw Hill. Inc., 10 F. App'x 16 (2d Cir. 2001).

Compounding Brady's prejudice is the fact that, as noted, Paul, Weiss acted as both alleged

"independent" counsel during the Investigation and also (perhaps inconsistently) as retained

counsel to the NFL during the arbitration. 21 Paul, Weiss uniquely was able to retain access to

21 The following colloquy occurred at the arbitration hearing:

Q [Kessler]:

A [Wells]: Q [Kessler]: A [Wells]:

Did you consider the NFL to be your client for purposes of the attorneyclient privilege--Yeah. -- with respect to the preparation of this investigative report? Yes.

June 23,2015 Hr'g Tr. 267:15-20.

Q [Kessler]: And would you be paid additional amounts for the work that [Paul, Weiss partner] Mr. Reisner is doing today or others assisting the NFL? That would be additional [to the Investigation] bills, right?

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investigative files and interview notes which it had developed; was able to use them in direct and

cross-examinations of Brady and other arbitration witnesses; share them with NFL officials

during the arbitral proceedings; and, at the same time, withhold them from Brady.

Commissioner Goodell had the "the affirmative duty ... to insure that relevant documentary

evidence in the hands of one party is fully and timely made available to the other party." See

Home lndem. Co., I 997 WL 773712, at *4 ("A failure to discharge this simple duty would

constitute a violation of[FAA § IO(a)(3)], where [as here] a party can show prejudice as a

result."); see also Def.'s Countercl. Ex. 166L, Tr. 633-34, 889, 891 (Bounty-Gate) (where

Arbitrator Tagliabue ordered the production of NFL investigative reports and redacted witness

memoranda).

V. Brady's Other Claims

In view of the Court's determinations regarding the inadequacy of notice and discovery

afforded to Brady, the Court does not reach Brady's other claims, which include the following:

A [Wells]:

!d. at 279:14-18.

Q [Kessler):

A [Wells]: Q [Kessler):

A [Wells]: Q [Kessler):

A [Wells]:

I d. at 270:3-14.

I hope so.

Would your principal colleague on this case be Mr. Lorin Reisner, who is seated over there? Correct Now, Mr. Reisner, you observed, was representing the NFL and crossexamining Mr. Brady and Mr. Snyder in this proceeding; is that correct? That is -- I saw it. You saw it. Okay. So, and Mr. Reisner was one of the principal lawyers working with you on this independent investigation, right? If you read the report, it basically says that.

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a) Brady argues that Commissioner Goodell was "evidently partial" within the meaning of9

U.S.C. § I O(a)(2), contending, among other things, that "a central ground of [his] appeal

was the issue of Goodell improperly delegating to Vincent his exclusive authority to

discipline players for conduct detrimental to the NFL." Def.'s Countercl. ~ 165.

b) Brady argues that "Goodell purports to sustain the suspension on factual conclusions that

Brady participated in ball tampering- but those factual conclusions [that "Mr. Brady

knew about, approved of, consented to, and provided inducements and rewards in support

of a scheme by which, with Mr. Jastremski's support, Mr. McNally tampered with the

game balls"] appear nowhere in the Wells Report and were not the basis for the discipline

imposed by Vincent." Def.'s Countercl. ~ 126. Brady contends that "Judge Doty's

ruling in Peterson makes clear than an Article 46 arbitrator lacks CBA authority to justify

discipline on a basis not found in the discipline being appealed." ld. (citing Adrian

Peterson, 2015 WL 795253, at *6).

c) Brady also argues that "prior to serving as hearing officer, the Commissioner publicly

lauded the reliability of the Wells Report [which was conducted by NFL retained

counsel]- the issue at the very heart of Brady's appeal." This "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." ld. ~ 167.

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VI. Conclusion & Order

For the reasons stated herein, the Management Council's motion to confirm the arbitration

award [No. 33] is denied and the Players Association's motion to vacate the arbitration award

[No. 34] is granted. Brady's four-game suspension is vacated, effective immediately. The Clerk

is respectfully requested to close cases 15 Civ. 5916 and 15 Civ. 5982.

Dated: New York, New York September 3, 2015

40

RICHARD M. BERMAN, U.S.D.J.


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Case 1:15-cv-05916-RMB-JCF Document 4-2 Filed 07/28/15 Page 2 of 21

NATIONAL FOOTBALL LEAGUE

July 28, 2015

FINAL DECISION ON ARTICLE 46 APPEAL OF TOM BRADY

I. Background ROGER GOODELL Commissioner

On January 18,2015, the Indianapolis Colts and New England Patriots played the AFC Championship Game at Gillette Stadium in Foxboro. During the game, a question arose as to whether the footballs being used by the Patriots were inflated to levels consistent with the league's Official Playing Rules. The league office promptly undertook an investigation, and soon after retained a team Jed by Ted Wells of Paul, Weiss, Rifkind, Wharton & Garrison to conduct an independent inquiry. Mr. Wells and his team conducted an extensive investigation, the results of which were documented in a report that was released to the public on May 6, 2015 (the "Wells Report").

On May 11,2015, relying on the factual findings and evidentiary record detailed in the Wells Report, I authorized discipline to be imposed on the New England Patriots in the form of a fine and loss of draft choices, and I authorized the suspension of New England quarterback Tom Brady without pay for the first four games of the 2015 regular season. These disciplinary decisions were communicated by NFL Executive Vice President for Football Operations Troy Vincent, Sr. In addition, the Patriots advised me that the club had indefinitely suspended two of its employees, John Jastremski, an assistant equipment employee, and James McNally, a gameday employee who served as the attendant in the Officials' Locker Room.

The Patriots did not appeal from the discipline that was imposed on the club. That discipline is not under review here. Mr. Brady, through the NFL Players Association, filed a timely appeal of his suspension. On June 23, 2015, at a hearing in that appeal, almost ten hours of sworn testimony and counsel argument were presented, resulting in a transcript more than 450 pages long. The hearing record also included more than 300 exhibits, including videos, scientific reports, newspaper articles and other publicly available material, and more than thirty sununaries of interviews conducted by NFL security representatives prior to the retention of Paul Weiss.

Following the hearing, the NFLPA (on Mr. Brady's behalf) and the NFL Management Council each filed a post-hearing brief. Both before and after the hearing, Mr. Brady's attorneys and agents submitted additional correspondence, including phone records from Mr. Brady's cellphone carrier.

The most significant new information that emerged in connection with the appeal was evidence that on or about March 6, 2015-the very day that he was interviewed by Mr. Wells and his investigative team-Mr. Brady instructed his assistant to destroy the cellphone that he had been using since early November 2014, a period that included the AFC Championship Game and the initial weeks of the subsequent investigation. During the four months that it was in use, almost 10,000 text messages were sent or received by Mr. Brady using that cell phone. At the time that he arranged for its destruction, Mr. Brady knew that Mr. Wells and his team had

345 Park Avenue. New York. New York 10154 Tel (212) 450·2000 Fax (212) 681-7574 SPA42



requested information from that cellphone in connection with their investigation. Despite repeated requests for that information, beginning in mid-February 2015 and continuing during his March 6, 2015 interview by the investigators, information indicating that Mr. Brady might have destroyed his cellphone was not disclosed until months later, on June 18,2015, and not confirmed until the day of the hearing itself.

This decision is issued pursuant to Article 46 of the Collective Bargaining Agreement between the NFL and NFLP A, which confirms the Commissioner's authority to impose discipline for conduct by a player that is "detrimental to the integrity of, or public confidence in, the game of professional football." Under Article 46, this decision "will constitute full, final and complete disposition of the dispute and will be binding upon the player(s), Club(s) and the parties to this Agreement."

II. Factual Determinations and Findings

The record in this appeal is extensive. It includes a 139-page investigative report prepared by the Paul Weiss team, which itself was accompanied by separate and detailed analyses prepared by Exponent, a scientific and engineering consulting firm that was engaged by the Paul Weiss investigators. The Wells Report and accompanying material were the product of an extensive and independent investigation and formed the factual basis for the discipline that was imposed on both the Patriots and Mr. Brady.

While the factual record is detailed and in some respects contested, there are several points that are not in dispute and important to this decision.

First, there is no question that the NFL Official Playing Rules prescribe a specific permissible range of inflation for footballs, namely 12.5 to 13.5 pounds per square inch ("psi").

Second, at least by the time of the AFC Championship Game, the inflation level of the footballs was a matter of particular interest to Mr. Brady. He told the Patriots' equipment staff that he wanted the footballs inflated at the lowest permissible level; he reviewed a highlighted copy of the provision of the Playing Rules that addressed inflation of footballs; and he instructed the equipment staff to present a copy of the rule to the game officials. On the day of the AFC Championship Game, Mr. McNally told referee Walt Anderson that Mr. Brady wanted the balls inflated to a pressure of 12.5 psi. He told the investigators that "Tom ... always has me pass a message to the Official's [sic] that he likes the balls at the minimum permissible PSI of 12.5 .... I know this is what Tom wants, and I have been personally told by him of the ball weight preference."

Third, prior to the game and pursuant to established protocol, Mr. Anderson examined each of the Patriots' footballs in the Officials' Locker Room and, after adding air to two of the balls, confirmed that they were all inflated to a pressure at or slightly above 12.5 psi. (Mr. Anderson similarly inspected the Colts' footballs and confirmed that they were inflated to a level consistent with the Playing Rules.)

2

ROGER GOODELL Commissioner

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Fourth, after the footballs were examined and certified by the referee (but still prior to the start of the game), and without the knowledge or approval of Mr. Anderson or any other member of the officiating crew, Mr. McNally left the Officials' Locker Room with the Patriots' footballs and went into a bathroom where he remained, behind a locked door, for approximately one minute and forty seconds. (Mr. McNally initially told NFL investigators that he had walked directly from the Officials' Locker Room to the field.) Mr. McNally's unannounced removal of the footballs from the locker room was a substantial breach of protocol, one that Mr. Anderson had never before experienced. Other referees interviewed by the investigators said that they too would have considered Mr. McNally's actions to be a breach of protocol and that he had not engaged in similar conduct in the games that they had worked at Gillette Stadium.

Fifth, based on a complaint from the Colts during the first half of the game, which echoed concerns that the Colts had expressed on the day before the game, eleven of New England's footballs were tested at halftime; all were below the prescribed air pressure range as measured on each of two gauges. Four of Indianapolis's footballs were tested at halftime; all were within the prescribed air pressure range on at least one of the two gauges.

Sixth, on Monday, January 19, 2015-the day after the AFC Championship Game, as the fact of a league investigation into the possible deflation of the footballs was becoming publicMr. Brady spoke to Mr. Jastremski by phone for more than 25 minutes, exchanged twelve text messages (which were recovered from Mr. Jastremski's cellphone) and met with him in person in "the QB room." These communications between Mr. Brady and Mr. Jastremski were their first significant cellphone communications (calls or texts) for at least the prior six months. Mr. Brady thought they would have spoken by phone no more than once or twice during the prior six months. Neither Mr. Brady nor Mr. Jastremski could recall exchanging any text messages during the prior six months. And Mr. Jastremski was clear that he had never before met with Mr. Brady in "the QB room." This pattern of multiple conversations and text messages continued on January 20 and 21.

Seventh, Mr. Brady, through his attorneys, declined to provide the investigators with access to highly relevant electronic information, such as emails and text messages. (The investigators had confirmed their earlier request for such information by email to Mr. Brady's lawyers/agents on February 28,2015 and they reiterated their request when they interviewed Mr. Brady on March 6, 2015.) He did so despite the very substantial protections offered by the investigators to maintain the privacy of his personal information. On this basis, as well as the Wells Report's conclusion that Mr. Brady's denials of involvement in the tampering scheme were not credible, I found that Mr. Brady had failed to cooperate with the investigation.

As noted above, on June 18,2015, shortly before the hearing and nearly four months after the investigators had first requested information from his cell phones, Mr. Brady's counsel submitted correspondence and other materials indicating that the cellphone that Mr. Brady had used from November 6, 2014, through March 5 or 6, 2015, was unavailable because it had been destroyed, and that the text messages exchanged on that cellphone could not be retrieved.

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At the hearing, Mr. Brady testified that it is his practice to destroy (or to give to his assistant to destroy) his cellphone and SIM cards when he gets a new cellphone. Mr. Brady also testified that, based on his typical practice, he would have asked to have the existing cellphone destroyed at or about the same time that he began using his new cellphone. According to records provided by Mr. Brady, he began using a new cellphone-and based on what Mr. Brady and his counsel described as his ordinary practice, gave his old cell phone to his assistant to be destroyed-on or about March 6, 2015, the very day that he met with Mr. Wells and his team to be questioned about the tampering allegations.

Even though the prior request for his text messages was discussed during that interview, neither Mr. Brady nor his counsel ever advised Mr. Wells that the cellphone that Mr. Brady had used during the key time period had been destroyed. During the four months that Mr. Brady used that cell phone, he exchanged nearly 10,000 text messages with a wide range of individuals. Following the appeal hearing, Mr. Brady's representatives provided a letter from his cellphone carrier confirming that the text messages sent from or received by the destroyed cellphone could no longer be recovered.

The record contains much more information bearing on this matter. It includes text messages between Mr. Jastremski and Mr. McNally in which Mr. McNally refers to himself as "the deflator"; that expressly refer to inflation and deflation of footballs and "needles" in the context of deflating footballs; and that reflect Mr. McNally's requests for cash, shoes, clothing and items autographed by Mr. Brady.

The record also includes detailed scientific analysis by Exponent. That analysis was in turn reviewed by Professor Daniel Marlow, a professor of physics (and former chairman of the department of physics) at Princeton. The experts from Exponent concluded, and Professor Marlow agreed, that the deflation of the Patriots' footballs cannot be fully explained by environmental factors or scientific principles such as the Ideal Gas Law. As noted in the Exponent report, the absence of a "credible scientific explanation for the Patriots' halftime measurements tends to support ll finding that human intervention accounted for the deflation of the Patriots' footballs." This finding is buttressed by the opinion of Professor Marlow, whom I found to be highly credible at the hearing, and who testified that he "was highly impressed with the level of detail, thought, planning and execution" of Exponent's work; that it was "really a first-class piece of work"; and that "the conclusions are correct." When viewed as part of the complete evidentiary record, Exponent's conclusions support my fmding that the deflation of the footballs was the result of human tampering.

Neither Mr. Jastremski nor Mr. McNally appeared as a witness at the appeal hearing. At the close of the hearing, the parties were asked whether the record should be held open to permit testimony from these two individuals, so that I could directly evaluate their credibility, before making a decision on the appeal. Mr. Brady and the NFLPA disclaimed any need to do so, even though Mr. Brady described Mr. Jastremski as a "friend" and both would presumably have fusthand knowledge of the facts relating to Mr. Brady's denials and other aspects of his testimony.

Further, as noted in the Wells Report, there are important topics about which Mr. McNally has not been interviewed; had he testified, he could have addressed those subjects,

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which include his characterization of himself as "the deflator." The Management Council has argued that an adverse inference should be drawn from the NFLP A's decision not to seek testimony from Mr. Jastremski and Mr. McNally. That is not necessary because, on the basis of the entire record, most of their statements to the investigators are not credible, as the Paul Weiss investigators found.

It is against the backdrop of these fundamental facts that I consider the arguments made by the NFLP A and Mr. Brady on appeal. In doing so, I have drawn upon my experience of more than thirty years with the National Football League, including nearly nine years as Commissioner.

III. The Governing Standards

Article 46, Section I (a) of our Collective Bargaining Agreement addresses discipline for conduct by a player that is "detrimental to the integrity of, or public confidence in, the game of professional football." The CBA recognizes that the Commissioner has authority to decide what constitutes conduct detrimental, to determine whether a player has engaged in conduct detrimental, and to determine and impose appropriate discipline if he finds that a player has engaged in conduct detrimental. This has been true throughout the long history of collective bargaining between the NFL and the NFLP A, a period of more than four decades.

This is an appeal proceeding under Article 46. I serve as the hearing officer in this appeal pursuant to Section 2 of that Article. With respect to conduct detrimental proceedings involving issues relating to the integrity of the game, the Collective Bargaining Agreement reflects a decision by the NFLP A and the NFL to accept the Commissioner's judgment. This has also been true for decades, and has been reflected in every collective bargaining agreement between the parties.

In appeals of Commissioner discipline under Article 46, the hearing officer gives appropriate deference to the findings and disciplinary decision under review; that is so even when the Commissioner serves as hearing officer. For that reason, as I said publicly prior to the hearing, I was eager to hear any new information, including testimony from Mr. Brady, that might cause me to reconsider the discipline initially imposed. Insofar as I received at the hearing testimony or documentary evidence of which I had been previously unaware, that information was considered anew.

The underlying standard of proof for factual findings in Article 46 proceedings is "preponderance of the evidence," or, stated differently, "more probable than not." Without exception, my findings below more than satisfy that standard, especially taking into account the credibility of the witnesses, including Mr. Brady, which I had ample opportunity to evaluate at the hearing.

As always, I am bound, of course, by standards of fairness and consistency of treatment among players similarly situated, and I have had those standards in mind throughout my consideration of this appeal.

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IV. The Issues Presented on Appeal

A. Was the decreased air pressure in the footballs the result of tampering or of natural environmental factors?

At the hearing, the NFLP A and Mr. Brady did not contest the findings of the Wells Report regarding the pre-game activities of Mr. McNally. Thus, it is undisputed that: (a) Mr. McNally informed the referee, Walt Anderson, of Mr. Brady's preferred level of inflation; (b) Mr. Anderson confirmed that the footballs were in fact inflated to that level; (c) prior to the start of the game, Mr. McNally removed the Patriots' footballs from the Officials' Locker Room without informing or receiving permission from any of the game officials; (d) after leaving the Officials' Locker Room with the footballs, Mr. McNally proceeded to a small restroom, locked himself inside and remained there for approximately one minute and forty seconds; and (e) Mr. McNally did so even though he had access to the men's room facilities in the Officials' Locker Room. The NFLPA and Mr. Brady also did not dispute the finding in the Wells Report that, based on experiments conducted by Exponent, this period was more than enough time for Mr. McNally to have released air from each of the Patriots' footballs.

Instead, the hearing focused on the reliability of the other scientific evidence discussed in the Wells Report and set forth in Appendix 1 to the report. The NFLPA and Mr. Brady submitted alternative scientific analyses (including, for example, the study published by economists from the American Enterprise Institute) and presented expert testimony from Dean Edward Snyder of the Yale School of Management, an economist who specializes in industrial organization. I have carefully considered Dean Snyder's testimony, along with that of three experts called by the Management Council, all of whom had been involved in the underlying scientific and engineering analysis reflected in the Wells Report: Dr. Robert Caligiuri of Exponent, an expert in mechanical and materials engineering; Dr. Duane Steffey of Exponent, an expert in statistics; and Professor Marlow of Princeton.

The principal issue addressed by the experts was whether the decline in pressure reflected in measurements of the Patriots' game balls at halftime could be explained by factors other than tampering. I find that the full extent of the decline in pressure cannot be explained by environmental, physical or other natural factors. Instead, at least a substantial part of the decline was the result of tampering.

In reaching this conclusion, I took into account Dean Snyder's opinion that the Exponent analysis had ignored timing, i.e., the fact that the Patriots' footballs, which were tested first, had less time to warm at halftime than did the Colts' footballs. Dr. Caligiuri and Dr. Steffey, however, both explained how timing was, in fact, taken into account in both their experimental and statistical analysis; they concluded, based on physical experiments, that timing of the measurements did have an effect on the pressure, but that timing in and of itself could not account for the full extent of the pressure declines that the Patriots' game balls experienced. Dean Snyder, in contrast, performed no independent analysis or experiments; nor did he take issue with the results of the Exponent experimental work that incorporated considerations of timing and were addressed in detail in the testimony of Dr. Caligiuri and Dr. Steffey.

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I also considered Dean Snyder's other two "key findings," as well as the arguments summarized in the NFLPA's post-hearing brief, including criticisms of the steps taken in the Officials' Locker Room at halftime to measure and record the pressure of the game balls.1 I was more persuaded, however, by the testimony of Dr. Caligiuri, Dr. Steffey, and Professor Marlow and the fact that the conclusions of their statistical analysis were confirmed by the simulations and other experiments conducted by Exponent. Those simulations and other experiments were described by Professor Marlow as a "first-class piece ofwork." 2

On these issues, the testimony of Professor Marlow, who had been retained by the Paul Weiss investigators to evaluate, critique and second-guess Exponent's work plan and conclusions, was especially persuasive and credible. Professor Marlow described his role as that of the "designated skeptic." His endorsement of Exponent's conclusions and his rebuttal of Dean Snyder's criticisms carried substantial weight. 3

As the Exponent study notes, its findings were made "to a reasonable degree of scientific certainty." It bears emphasis, however, that my finding of tampering with the game balls is not based solely on the Exponent study and the testimony of the scientific experts, but instead on consideration of all of the evidence in the record, including the conduct, text messages, and other communications discussed in both the Wells Report and at the hearing. This full record establishes that the reduction in the pressure of the Patriots footballs was due at least in substantial part to tampering.

B. What role, if any, did Mr. Brady have in the scheme to tamper with the footballs?

There is no dispute with the conclusion in the Wells Report that "it is unlikely that an equipment assistant and a locker room attendant would deflate game balls without Brady's knowledge and approval" and that Mr. McNally and Mr. Jastremski would not "personally and

1 There was argument at the hearing about which of two pressure gauges Mr. Anderson used to measure the pressure in the game balls prior to the game. The NFLP A contended, and Dean Snyder opined, that Mr. Anderson had used the so-called logo gauge. On this issue, I find unassailable the logic of the Wells Report and Mr. Wells's testimony that the non-logo gauge was used because otherwise neither the Colts' balls nor the Patriots' balls, when tested by Mr. Anderson prior to the game, would have measured consistently with the pressures at which each team had set their footballs prior to delivery to the game officials, 13 and 12.5 psi, respectively. Mr. Wells's testimony was confirmed by that of Dr. Caligiuri and Professor Marlow. As Professor Marlow testified, "There's ample evidence that the non-logo gauge was used." 2 For similar reasons, I reject the arguments advanced in the AEI Report. The testimony provided by the Exponent witnesses and Professor Marlow demonstrated that none of the arguments presented in that report diminish or undermine the reliability of Exponent's conclusions. 3 Mr. Wells testified that Professor Marlow was expressly engaged as a "double-check" on the work performed by Exponent. He further testified, and Dr. Caligiuri confirmed, that all of the experts who participated in the investigation were instructed to act as if they were "courtappointed" experts and to provide "objective science."

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unilaterally [have] engaged in such conduct in the absence of Brady's awareness and consent." Indeed, in response to my question, Mr. Brady confirmed at the hearing that the Patriots' equipment personnel would not do anything to a game ball that was inconsistent with what he wanted.

Mr. Brady denies having been involved in the scheme to deflate the footballs. But in considering the entire record, including Mr. Brady's testimony, the credibility of other witnesses and the documentary evidence, I cannot credit this denial for the following reasons.

Among other things, the unusual pattern of communication between Mr. Brady and Mr. Jastremski in the days following the AFC Championship Game cannot readily be explained as unrelated to conversations about the alleged tampering of the game balls.

The evidence reflects that, after having virtually no communications by cellphone for the entire regular season, on January 19, the day following the AFC Championship Game, Mr. Brady and Mr. Jastremski had four cellphone conversations, totaling more than 25 minutes, exchanged twelve text messages, and, at Mr. Brady's direction, met in the "QB room," which Mr. Jastremski had never visited before.4 In one of the text messages, Mr. Jastremski told Mr. Brady that "Dave will be picking your brain later about it. He's not accusing me or anyone. Trying to get to the bottom of it. He knows it's unrealistic you did it yourself."5 On the following day, January 20, Mr. Brady and Mr. Jastremski spoke twice, for a total of nearly ten minutes, and exchanged two text messages. On January 21, Mr. Brady and Mr. Jastremski again texted and then spoke twice for more than twenty minutes. The source for all of this information was Mr. J astremski' s cell phone.

Mr. Brady testified that he was unable to recall any specifics of those discussions and he suggested that their principal subject was preparation of game balls for the Super Bowl. 6 But the need for such frequent communication beginning on January 19 is difficult to square with the fact that there apparently was no need to communicate by cell phone with Mr. Jastremski or to

4 The Wells Report indicates that, as of January 19,2015, the most recent prior cellphone communication between Mr. Brady and Mr. Jastremski that the investigators could identify from the materials provided to them had occurred on July 4, 2014; that Mr. Jastremski was not sure if he had communicated by cell phone or text with Mr. Brady between July 20 I 4 and December 2014, and that at most they had done so fewer than three times during that entire period; and that Mr. Brady did not recall if he had communicated by cellphone or text with Mr. Jastremski in 2014. Mr. Brady's phone bills, provided by his agent shortly before the hearing, indicate two short calls (3 minutes duration in total) between Mr. Brady and Mr. Jastremski on October II, 2014. 5 In context, it is clear that "Dave" was Dave Schoenfeld, the Patriots' Equipment Manager. I understand from the Wells Report that, in his interview with the investigators, Mr. Jastremski denied that "it" in the last sentence of the text message referred to deflation of footballs. But given the context of the text messages exchanged that day, it is very hard to believe that denial. 6 In response to the question, "Why were you talking to Mr. Jastremski in those two weeks?," Mr. Brady responded, in sum: "I think most of the conversations centered around breaking in the balls." For the reasons noted, I do not fully credit that testimony.

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meet personally with him in the "QB room" during the preceding twenty weeks of the regular season and post-season prior to the AFC Championship Game. This was true even though, as Mr. Brady testified, there were occasions (such as the game against the New York Jets on October 16, 2014) when he was plainly dissatisfied with the preparation of the footballs, including their inflation level, and even though, only two days prior to the AFC Championship Game, he and Mr. Jastremski had decided to use an entirely new method to prepare the game balls that involved much less use of a particular conditioner called Lexol and much more intensive "gloving" of the footballs. (Tr. 68-69 ("I asked John to make up 24 brand new balls without putting any Lexol on them.").)

The sharp contrast between the almost complete absence of communications through the AFC Championship Game and the extraordinary volume of communications during the three days following the AFC Championship Game undermines any suggestion that the communications addressed only preparation of footballs for the Super Bowl rather than the tampering allegations and their anticipated responses to inquiries about the tampering.

In addition, throughout the period in which Mr. Brady and Mr. Jastremski were having such frequent communications, Mr. Jastremski was in frequent communication with Mr. McNally. On January 19, only six minutes after his first conversation with Mr. Brady, Mr. Jastremski called Mr. McNally; they spoke for nearly ten minutes. They spoke multiple additional times throughout the remainder of the day for a total of 22 minutes; their conversations included Mr. McNally's giving Mr. Jastremski a "heads up" that the latter's name had been mentioned in the former's interview by NFL Security. There were multiple, lengthy phone conversations between Mr. McNally and Mr. Jastremski over the next several days.

The frequent and lengthy conversations between Mr. Brady and Mr. Jastremski and, in tum, between Mr. Jastremski and Mr. McNally, are important in numerous respects. Text messages exchanged during the latter half of the 2014 regular season that were recovered from Mr. Jastremski's cellphone reveal that Mr. Jastremski and Mr. McNally had discussed Mr. Brady's views about the pressure of game balls and made multiple references to Mr. Jastremski's providing a "needle" for Mr. McNally's use. Those texts included Mr. Jastremski's statement to Mr McNally, in the context of an exchange about the pressure of game balls, that Mr. Brady "actually brought you up and said you must have a lot of stress trying to get them done."

I agree with the Wells Report and reject as implausible Mr. McNally's interpretation of the quoted text message-i.e., that it referred to someone other than Mr. Brady and that the "stress" referred to Mr. McNally's efforts to resell his Patriots game tickets. The text messages immediately before and after that message (all within a range of about two and a half minutes) plainly refer to Mr. Brady, and the context of their exchange plainly involves the inflation levels of footballs. Given that there is no dispute that Mr. McNally's only assigned responsibility with respect to the game balls was to deliver them, I find that "trying to get them done" referred to tampering with the inflation level of the balls. No credible alternative explanation for that

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message has been offered by Mr. McNally, Mr. Jastremski or Mr. Brady and the decision not to seek Mr. McNally's testimony at the hearing has foreclosed any other conclusion.7

Furthermore, there is another text message in which Mr. McNally, expressing anger with Mr. Brady, states that "the only thing deflating sun[ day] is his passing rating." Equally, if not more telling, is a text message earlier in 2014, in which Mr. McNally referred to himself as "the deflator," and, a short time later, stated that he was "not going to espn ... yet." Again, the absence of Mr. McNally from the hearing leaves these text messages unexplained by the person who sent them.

These exchanges must be considered in the context of demands from Mr. McNally, communicated to and through Mr. Jastremski, for consideration from Mr. Brady. There are multiple requests by Mr. McNally for footballs "for Tom to sign," apparel, and shoes. And in response to a text message from Mr. Jastremski in which he says "I have a big needle for you this week," Mr. McNally responds: "Better be surrounded by cash and newkicks ... or it's a rugby sunday."8 Finally, about a week before the AFC Championship Game, Mr. Jastremski told Mr. McNally that it would be a "big autograph day for you," and several days later, in the Patriots' equipment room, Mr. Brady (i) autographed two footballs and handed them to Mr. McNally and (ii) signed a Brady game-worn jersey for Mr. McNally.

In short, the available electronic evidence, coupled with information compiled in the investigators' interviews, leads me to conclude that Mr. Brady knew about, approved of, consented to, and provided inducements and rewards in support of a scheme by which, with Mr. Jastremski's support, Mr. McNally tampered with the game balls. The result was to undermine, if

7 The NFLPA and the Management Council were asked to address in their post-hearing briefs whether, before deciding this appeal, I should hear directly from Mr. Jastremski and Mr. McNally, each of whom has been suspended by the Patriots. The NFLPA took the position that because both witnesses had denied any scheme to deflate the Patriots' game balls, there was "no need to call them as witnesses. Brady sought to confront his accusers, not those who have already provided exculpatory evidence." The Management Council noted that, based on their interviews with the investigators and NFL Security, the Wells Report contained numerous findings with respect to Mr. McNally's and Mr. Jastremski's conduct and credibility and argued that to the extent that Mr. Brady and the NFLP A wished to contest these findings, it was incumbent on them to call both witnesses. The Management Council also argued that in light of the findings in the Wells Report with respect to their conduct and credibility, I should draw an adverse inference-that "their testimony would have confirmed Brady's involvement"-from the NFLPA's failure to caii them as witnesses. While I am permitted to do so, I decline to draw any such adverse inference from Mr. Brady's decision not to seek the testimony of either witness. However, there is no question, based on the Wells Report, the NFL Security interviews, and other record evidence, that any "exculpatory evidence" offered by Mr. Jastremski or Mr. McNally to the investigators, including their denials of a tampering scheme, is not credible. 8 When asked about this message by the investigators, Mr. McNally acknowledged that the reference to "rugby" meant a football that was over-inflated. In context, it is plain that the word "newkicks" referred to shoes.

10

ROGER GOODELL Commissioner .

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not vitiate, the game officials' efforts to ensure that the game balls used by the Patriots complied with league rules.9

C. Did Mr. Brady refuse to cooperate with the investigation?

There is no question that Mr. Brady declined to make available to investigators electronic information, including text messages and emails, related to the subject of the investigation. 10 He did so despite repeated requests for such information and notwithstanding the investigators' offer to allow his counsel to select the responsive communications so that the privacy of his personal communications could be maintained.

The evidence that was produced in connection with the hearing reinforces this conclusion. On the eve of the hearing, the NFLPA submitted a declaration from a forensic expert, Brad Maryman, who had been engaged to review Mr. Brady's cellphones for responsive information after the discipline letter had been issued and months after the information was first requested. Mr. Maryman's review was extremely limited. It consisted of a review of two cellphones used by Mr. Brady, one from the spring of2014 through November 5, 2014 and another from March 6, 2015 through April 8, 2015. Because Mr. Maryman believed that the period of use for the second cell phone was outside the scope of the investigation, he conducted no analysis of its contents. With respect to the first phone, Mr. Maryman conducted only a limited review, searching available SMS and MMS messages for a select number of names and telephone numbers, rather than for all communications falling within the categories of information sought by the investigators.

9 Even accepting Mr. Brady's testimony that his focus with respect to game balls is on a ball's "feel," rather than its inflation level, there is ample evidence that the inflation level of the ball does matter to him. That evidence starts with his testimony that he wanted his game balls inflated to the lowest level permissible under the rules, and includes what Mr. McNally told the investigators, including for example that he (Mr. McNally) had told referee Anderson about Mr. Brady's inflation-level preferences. Mr. Brady's claim that he does not focus on inflation levels is also inconsistent with his reaction to what he thought were over-inflated footballs used in a 2014 game. There are also multiple public statements by Mr. Brady, including his having described 12.5 psi as "the perfect grip for me" and his statement in a prior season that "I like the deflated ball" (after it had been spiked by one of his teanunates), a statement that, even if made in a joking manner, indicates a preference for less-inflated footballs. 10 Specifically, the investigative team asked for the production of"documents and emaiVtext messages (including on [Mr. Brady's] phone)'' during the period from September 1, 2014 to the present that fell within specified "categories of information," including "non-privileged communications concerning the preparation of game balls, ... the ball preparation process, inflation of balls, deflation of balls, providing balls to game officials and the movement of footballs between the officials' locker room and the playing field." In addition, investigators requested the production of"text messages or other communications between Mr. Brady, John Jastremski, Dave Schoenfeld and Jim McNally from September I, 2014 to the present regardless of subject, as well as a log of the above calls between Mr. Brady and those individuals since January 17, 2015."

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More importantly, Mr. Maryman was not given access to the cellphone that Mr. Brady had used between November 6, 2014 and March 5 or 6, 2015, the period that included the AFC Championship Game, its immediate aftermath, and the first six weeks of the investigation. As a result, the substance of relevant text messages on that cell phone was not, and could not be, reviewed. All we know is that Mr. Brady exchanged nearly 10,000 text messages with many individuals over this period of approximately four months. 11

As I have previously noted, Mr. Brady's agent explained, and Mr. Brady confirmed in his testimony, (a) that his ordinary practice, when he gets a new cellphone, is to give the old cell phone to his assistant for destruction and (b) that he followed that ordinary practice with the cellphone that he used from November 6, 2014 until early March 2015. But he offered no explanation of why, on March 5 or 6, 2015, he replaced the cellphone that he had been using since November 6, 2014. (Mr. Brady testified that he did not have a schedule for periodically changing cellphones.)

Mr. Brady explained that when he changes cellphones, he gives his old cellphone to an assistant with the instruction "to destroy the phone so that no one can ever, you know, reset it or do something where the information is available to anyone." But this conflicts with the fact that the cellphone that he had used prior to November 6, 2014 was, in fact, available for Mr. Maryman's review. Had Mr. Brady followed what he and his attorneys called his "ordinary practice," one would expect that the cellphone that he had used prior to November 6, 2014 would have been destroyed long before Mr. Maryman was hired. No explanation was provided for this anomaly.

The evidence and testimony presented at the hearing demonstrate that Mr. Brady gave the cellphone that he had used since November 6, 2014 to his assistant for destruction on either March 5 or, more likely, March 6, the first date of active use of the second cellphone given to Mr. Maryman for review. That date of the cellphone's destruction-on or about March 6, 2015-is very significant. March 6 was the date on which Mr. Brady was interviewed by Mr. Wells and his team. (The date of that meeting was confirmed on March 3, 2015, several days before the cellphone was destroyed.) The investigators' request for access to information recorded in Mr. Brady's cellphone, which had been communicated several weeks before, was renewed on February 28, 2015, a week before the interview, in an email to Mr. Brady's lawyers. That request was addressed at length during the interview, but at no time did Mr. Brady ever suggest that the cellphone had been (or would soon be) destroyed. Moreover, Mr. Brady

11 After the hearing and after the submission of post-hearing briefs, Mr. Brady's certified agents offered to provide a spreadsheet that would identify all of the individuals with whom Mr. Brady had exchanged text messages during that period; the agents suggested that the League could contact those individuals and request production of any relevant text messages that they retained. Aside from the fact that, under Article 46, Section 2(f) of the CBA, such information could and should have been provided long before the hearing, the approach suggested in the agents' letter-which would require tracking down numerous individuals and seeking consent from each to retrieve from their cellphones detailed information about their text message communications during the relevant period-is simply not practical.

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admitted in his testimony that he was personally aware, prior to March 6, 2015, of the investigators' request for information from his cellphone.

Mr. Brady's direction that his cellphone (and its relevant evidence) be destroyed on or about March 6 is very troubling. Rather than simply failing to cooperate, Mr. Brady made a deliberate effort to ensure that investigators would never have access to information that he had been asked to produce. Put differently, there was an affirmative effort by Mr. Brady to conceal potentially relevant evidence and to undermine the investigation. Mr. Brady's conduct gives rise to an inference that information from his cell phone, if it were available, would further demonstrate his direct knowledge of and involvement with the scheme to tamper with the game balls prior to the AFC Championship Game. 12 Mr. Brady's affirmative action to ensure that this information would not be available leads me to conclude that he was attempting to conceal evidence of his personal involvement in the tampering scheme, just as he concealed for months the fact that he had destroyed the cellphone requested by the investigators.

Mr. Brady's failure to cooperate and his destruction of potentially relevant evidence are significant because the ability to conduct an investigation-whether by NFL staff or by independent parties retained by the NFL-ultimately depends on cooperation. Neither the NFL nor any NFL member club has subpoena power or other means to compel production of relevant materials or testimony. Nonetheless, the NFL is entitled to expect and insist upon the cooperation of owners, League employees, club employees and players in a workplace investigation and to impose sanctions when such cooperation is not forthcoming, when evidence is hidden, fabricated, or destroyed, when witnesses are intimidated or not produced upon reasonable request, or when individuals do not provide truthful information. Moreover, in such cases, there is no question that the Hearing Officer may draw an adverse inference from the lack of cooperation and may reasonably interpret available evidence in a manner that supports findings of misconduct.

* * * The evidence fully supports my findings that (1) Mr. Brady participated in a scheme to

tamper with the game balls after they had been approved by the game officials for use in the AFC Championship Game and (2) Mr. Brady willfully obstructed the investigation by, among other things, affirmatively arranging for destruction of his cellphone knowing that it contained potentially relevant information that had been requested by the investigators. All of this indisputably constitutes conduct detrimental to the integrity of, and public confidence in, the game of professional football.

12 I do not accept the argument, advanced by NFLP A counsel on Mr. Brady's behalf, that in failing to provide information from his phones to the investigators, Mr. Brady was acting on the advice of counsel. Even if I were inclined to accept that argument, there is no evidence that Mr. Brady's counsel advised him to destroy his phone and thereby preclude recovery of potentially relevant electronic information exchanged during the key time period.

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V. The Discipline

As noted above, I am very much aware of, and believe in, the need for consistency in discipline for similarly situated players. The NFLPA is wrong, however, to suggest that because no player may have been suspended before for tampering with game footballs or obstructing an investigation, a suspension carmot be issued here. Under the CBA, the law of the shop is clear, as explained by Hearing Officer Henderson in the Tony McDaniel appeal:

Each case is unique in its facts and circumstances. While it is important that similar cases be treated similarly for discipline purposes, differences are not always apparent, and it is often difficult to see those distinctions long after decisions are made. Reliance on past decisions, without benefit of all the factors considered, is misplaced. 13

No prior conduct detrimental proceeding is directly comparable to this one. Here we have a player's uncoerced participation in a scheme to violate a competitive rule that goes to the integrity of the game. Unlike any other conduct detrimental proceeding of which I am aware, and certainly unlike any cited by either party, this scheme involved undermining efforts by game officials to ensure compliance with League rules.

The scheme, which sought to secure a competitive advantage on the playing field, was coupled with not only (i) a failure to cooperate with the League's investigation, but also (ii) destruction of potentially relevant evidence with knowledge that the evidence had been sought in the investigation.

The conduct at issue here is therefore fundamentally different from that of the players who were found to have engaged in conduct detrimental in the Bounty proceeding. Commissioner Tagliabue there placed great emphasis on his view that the misconduct of the Saints' players was in large part the result of pressure from coaches and other management representatives, resulting in the players' "not hav[ing] much choice but to 'go along'." The bounty program was largely developed and administered by the coaches, and the pressure on the players extended to "obstruction of the original investigation [which was] directed by Saints' officials." There is no evidence of any such pressure on Mr. Brady here. 14

13 In the Hardy opinion, Hearing Officer Henderson went on to say: "The Commissioner's authority and discretion in deciding appropriate discipline is not circumscribed or limited by the CBA, and he is not forever bound to hold discipline at the same level. In my experience as a hearing officer I have seen, and upheld, increases in the level of discipline without prior notice, not surprising with a policy which is unilaterally promulgated by the league without negotiation." As I further explain below, here there is no "usual level of discipline" because the conduct detrimental at issue in this proceeding is fundamentally different from the conduct detrimental at issue in any other proceeding. 14 Even with respect to similar behavior, Commissioner Tagliabue in his Bounty decision made clear that "this case should not be considered a precedent for whether similar behavior in the

ROGER GOODELL

14 Commissioner

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To the contrary, the Wells Report documented that the Patriots' ownership, executives, coaching staff, and the head equipment manager, Mr. Schoenfeld, had no knowledge of or participation in the scheme. Those findings are not challenged on appeal. Nor was there a challenge to the record evidence that Mr. Jastremski and Mr. McNally sought to hide their actions from Mr. Schoenfeld, and that Mr. Jastremski warned Mr. Brady that Mr. Schoenfeld would be asking him about the condition of the footballs that had been used in the AFC Championship Game.

The conduct at issue here is also very different from that which led to the discipline imposed on Brett Favre, who was investigated for a violation of League workplace policies. The conduct alleged there (which the League was unable to prove) was of a kind that reflects poorly on the League but does not go to the integrity of the competition on the field. In Mr. Favre's case, I found that he had not been "fully candid" with the NFL staff in several respects that resulted in a longer and more costly review than might otherwise have been required; on that basis I imposed a fine. My findings with regard to Mr. Brady's conduct, including his involvement with the tampering scheme and his destruction of relevant evidence, are fundamentally different. 15

The conduct at issue here is also very different from the ball-warming incident in Minnesota last year, in which a Carolina Panthers ball attendant was observed warming a ball on the Vikings' sideline; there 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. As Mr. Vincent testified, the ball never got into the game and the matter "was addressed immediately."

The conduct at issue here is also very different from the incident involving the Jets' equipment staff member who "attempted to use" unapproved equipment in plain view of the officials to prepare kicking balls prior to a 2009 game against the Patriots. There was no evidence of any player involvement. However, it bears mention that the Jets' employee was suspended from his regular game-day duties for a period longer than the suspension under review here. 16

future merits player suspensions or fmes" because his over-riding objective there was to bring closure to the entire Bounty-related set of issues. 15 Nor do the statements attributed to Aaron Rodgers, who (according to a third party) was reported to have commented that he liked to push the limit in terms of inflating balls to see if the officials took air out of the balls when they were measured prior to the game, present a comparable situation. Here, the balls were tampered with after the officials had approved them for use in the game. 16 That suspension itself disproves the NFLP A's argument that any discipline here must be limited to a fine of $25,000, an amount that would be a substantial punishment for a game-day employee, but a mere token for any player. Indeed, the language from the Game Operations Manual upon which the NFLP A relies for that argument expressly states that discipline "is flat

ROGER GOODELL

15 Commissioner

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In terms of the appropriate level of discipline, the closest parallel of which I am aware is the collectively bargained discipline imposed for a first violation of the policy governing performance enhancing drugs; steroid use reflects an improper effort to secure a competitive advantage in, and threatens the integrity of, the game. Since the advent of our testing for steroid use in the 1980s and now, pursuant to our Collective Bargaining Agreement, the first positive test for the use of performance enhancing drugs has resulted in a four-game suspension without the need for any finding of actual competitive effect.

In our most recent Collective Bargaining Agreement, the parties (a) agreed to continue that level of a discipline for a first violation and (b) further agreed that a player found to have used both a performance enhancing drug and a masking agent would receive a six-game suspension. The four-game suspension imposed on Mr. Brady is fully consistent with, if not more lenient than, the discipline ordinarily imposed for the most comparable effort by a player to secure an improper competitive advantage and (by using a masking agent) to cover up the underlying violation. 17

VI. Notice and Other Legal Issues Advanced on Appeal

Contrary to the NFLPA's arguments, I find that Mr. Brady had more than adequate notice that he could be subject to "conduct detrimental" discipline, including suspension, for the conduct at issue here.

First, despite the union's arguments to the contrary, the record is undisputed that prior to January 18,2015, the date of the AFC Championship Game, Mr. Brady was fully aware of the rule expressly regulating the permissible inflation range for game balls. Mr. Brady testified about his knowledge of that rule and that he had taken steps in the past to call the relevant provision to the attention of game officials.

Second, the CBA does not require itemization of specific categories of misconduct that may be deemed "conduct detrimental" and subject to discipline. As the CBA-prescribed standard

limited" to such a fine, and I decline to adopt an interpretation of that passage that disregards its plain meaning. 17 The four-game suspension is also consistent with the suspension recently imposed on the General Manager of the Cleveland Browns for a first violation of a league rule intended to maintain fair competition and the integrity of the game. The length of that suspension reflected, and was explicitly mitigated by, the General Manager's self-reporting and transparency in acknowledging wrongdoing. There are no such mitigating factors here.

There are similar examples of discipline imposed on coaches for conduct detrimental that bears on the integrity of the game, including the one-year suspension of Sean Payton and the six-game suspension of Joe Vitt imposed in connection with the Saints' pay-for-performance bounty program. I do not rely on those examples to determine the discipline imposed on Mr. Brady, but they reinforce my conclusion, based principally on the penalties associated with violations of the steroid policy, that the discipline imposed on Mr. Brady is not excessive or without precedent, and is in fact fair and reasonable.

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NFL Player Contract makes clear, such determinations are left to the "reasonabl[e] judg[ment]" of the Commissioner. Mr. Brady had knowledge and notice of that fact.

Tampering with the game balls after they have been approved by the game officials-an effort to undermine the game officials' responsibility to ensure that game balls are in compliance with League rules-is plainly within the scope of matters that may reasonably be judged by the Commissioner to affect the integrity of, and public confidence in, the game of professional football. Mr. Brady knows that players are subject to suspension for violations of the Playing Rules and had no reason to believe that a suspension could not be imposed for the conduct at issue here. 18

The same principle undermines the NFLPA's contention that Mr. Brady was unaware that he could be disciplined for "declining to respond to the Wells discovery requests" or "failing to cooperate" with the investigation. As a threshold matter, there is no disagreement about the obligation of club employees, including players, to cooperate with a proper League investigation. Moreover, the conduct at issue here-specifically the willful destruction of potentially relevant evidence-goes well beyond Mr. Brady's failure to respond to or fully cooperate with the investigation.

In the CBA-prescribed standard NFL Player Contract itself, each player "recognizes the detriment to the League and professional football that would result from impairment of public confidence in the honest and orderly conduct of NFL games or the integrity and good character of NFL players." Such conduct includes "any ... form of conduct reasonably judged by the League Conlinissioner to be detrimental to the League or professional football." Even without regard to the arbitration precedents cited by the Management Council in its post-hearing brief (at pages 8-9), Mr. Brady's conduct during the investigation falls squarely within the scope of conduct that may be reasonably judged by the Commissioner to be "conduct detrimental" to the League. There should be no question in anyone's mind that active obstruction of a conduct detrimental investigation may and will itself be deemed conduct detrimental and subject to discipline, as the standard Player Contract provides, by a fine in a reasonable amount, by suspension for a period certain or indefinitely, or by termination of the player's contract. 19

"As Commissioner Tagliabue observed in the Bounty decision, "The matters that can affect such integrity and public confidence [in the game of professional football] evolve and change over time depending on developments within and external to the League, and the parties to the CBAs have agreed not to operate with a static or frozen defmition of conduct detrimental."

19 The NFLPA's argument about the NFL's Policy on Integrity of the Game & Enforcement of Competitive Rules is misplaced. That Policy imposes certification and reporting requirements on clubs and certain senior club executives, thereby providing an additional means of enforcing rules that ensure fair competition; it also prescribes protocols for investigations of competitive violations by clubs. (Inasmuch as the investigation addressed conduct by the Patriots, it is not surprising that the Wells Report cited this Policy.)

The Policy was not the source or the basis for the discipline imposed here. The bar on conduct detrimental to the integrity of and public confidence in the game of professional football is instead reflected in the standard form, collectively bargained Player Contract, among other

ROGER GOODELL

17 Commissioner

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Indeed, a player of Mr. Brady's tenure in the league and sophistication, and who was represented by highly experienced counsel (both personal and NFLPA-engaged), cannot credibly contend that he believed that he could, without consequences, destroy his cellphone on or about the day of his interview with the investigators when he knew in advance of the interview that the investigators were seeking the cell phone for the evidence that it contained. And the belated attempt by his representatives to remedy this failure to cooperate-ultimately by asking the NFL to track down nearly 10,000 text messages sent to or received from a substantial number of other individuals-is simply insufficient. The NFLPA imd Mr. Brady's representatives have identified no instance in or outside the NFL in which such conduct has been deemed satisfactory cooperation with an investigation.

Finally, the CBA-mandated standard NFL Player Contract, which Mr. Brady signed, makes clear and provides notice that, in the event of a finding of conduct detrimental, the Commissioner may "suspend Player for a period certain or indefinitely."

In sum, Mr. Brady had notice, and in fact was fully aware of, the established rule governing the pressure of NFL game balls; he had notice and ample reason to expect that a violation of that rule, especially one that sought to undermine the efforts of game officials to ensure that game balls were in compliance with League rules, would be deemed conduct detrimental; he had notice and ample reason to expect that false or misleading statements and/or destruction of evidence requested for use in an investigation of conduct detrimental would itself be deemed conduct detrimental; and he had notice and ample reason to expect that such conduct detrimental could lead to his suspension.

* * * Finally, the NFLPA and Mr. Brady have argued that I improperly delegated my "conduct

detrimental" authority and that the Paul Weiss investigation was not independent. Neither argument has merit.

First, as made clear in my opinion of June 22,2015, I did not delegate my authority as Commissioner to determine conduct detrimental or to impose appropriate discipline. I was directly involved in the assessment of Mr. Brady's conduct that led to his suspension and in determination of the suspension itself; I concurred in Troy Vincent's recommendation and authorized him to communicate to the club and to Mr. Brady the discipline imposed under my authority as Commissioner. Second, there was no delegation of any authority to the investigators.

documents, and it was in place long before the Policy was issued. As the discipline letter makes clear, Mr. Brady was suspended for conduct detrimental to the integrity of and public confidence in the game of professional football, not for a violation of the Policy.

The fact that he claimed to be unaware of the Policy is therefore irrelevant to any issue in this appeal, including the issue of notice. In any event, the record demonstrates that at the very least, Mr. Brady had constructive notice of that Policy, which in response to his counsel's request, was provided to his counsel by the Paul Weiss team on March 3, two or three days before Mr. Brady destroyed his cell phone.

18


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To the contrary, I reviewed the facts set forth in the Wells Report to determine, whether in my own judgment, the identified conduct constituted "conduct detrimental."

Nor is there any basis for the NFLPA's suggestion that the Wells Report was not the product of an independent investigation.20 The Report itself makes clear, and the hearing testimony of Mr. Wells confirmed, that the investigation and report represent solely and entirely the findings and conclusions of the Wells investigatory team.21

CONCLUSION

I entered into the appeal process open to reevaluating my assessment of Mr. Brady's conduct and the associated discipline. Especially in light of the new evidence introduced at the hearing-evidence demonstrating that he arranged for the destruction of potentially relevant evidence that had been specifically requested by the investigators-my findings and conclusions have not changed in a manner that would benefit Mr. Brady.

Notwithstanding my enormous respect for his accomplishments on the field and for his contributions and role in the community, I find that, with respect to the game balls used in the

20 The NFLPA takes the position that because the NFL asserted attorney-client privilege for certain of its communications with Paul, Weiss and because a Paul, Weiss attorney asked questions of witnesses at the appeal hearing, the investigation was not "independent." For the reasons stated in the text, among others, I disagree. But this disagreement does not matter: If the entire investigation had been conducted by in-house NFL employees instead of an outside law firm, I would still view it as a thorough and reliable basis for my fmdings and conclusions and a thorough and detailed means of providing Mr. Brady and the NFLP A notice of the conduct detrimental for which the suspension was imposed. 21 Asserting that Mr. Brady was denied a fundamentally fair hearing, the NFLPA's post-hearing brief raises again issues resolved in my pre-hearing rulings, including the denial of the NFLPA's request to question NFL General Counsel JeffPash and the denial of the NFLPA's request for access to Paul, Weiss' internal recorc!s. With one exception, those issues were addressed in prehearing opinions (or above) and will not be addressed again here.

The exception relates to the NFLPA's argument that NFL General Counsel JeffPash played a significant role in the investigation and should have been required to testify at the hearing. I reject that argument for several reasons, including those set forth in my Decision on Hearing Witnesses. The NFLPA's premise-that Mr. Pash played a significant role in the investigationis simply incorrect, as Mr. Wells confirmed at the hearing. He testified that "JeffPash did not attend any witness interviews. I did not ... involve him [in] my deliberations with respect to my assessment of those interviews. Mr. Pash played no substantive role in the investigation ... and [any comments that he may have provided on a draft of the report] did not impact in any substantive fashion the conclusions with respect to my fmdings with respect to" Mr. Brady. In any event, the NFLP A waived this argument by not seeking at the hearing reconsideration of my decision denying its motion to compel Mr. Pash's testimony. (See Decision on Hearing Witnesses and Testimony, June 22,2015, at 3.)

19


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AFC Championship Game and the subsequent investigation, Mr. Brady engaged in conduct detrimental to the integrity of, and public confidence in, the game of professional football.

The four-game suspension is confirmed. In response to a concern raised by the NFLP A, this will confirm that compensation for the intervening bye week will be paid to Mr. Brady in equal installments over the remainder of the season once he returns from his suspension.

20


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June 22, 2015

ARTICLE 46 APPEAL OF TOM BRADY

Re: Decision on Hearing Witnesses and Discovery


By letter dated June 19,2015, the NFLPA moved for an order compelling the Management Council to produce certain witnesses and docllrtlents in connection with the hearing in this matter. Also by letter dated June 19,2015, the Management Council submitted its position on most of the issues raised in the NFLPA's letter. After carefully reviewing all of the submissions, I set forth below my decisions with respect to the contested hearing witnesses and the requested discovery.

I. Hearing witnesses

Because Article 46 of our Collective Bargaining Agreement does not address the permitted scope of witness testimony at appeals hearings, it is within the reasonable discretion of the hearing officer to determine the scope of the presentations and, where appropriate, to compel

the testimony of any witnesses whose testimony is necessary for the hearing to be fair.

After the parties met and conferred about proposed witnesses, there remain disputes about four witnesses whose testimony the NFLP A has moved to compel. I resolve those

disputes as set forth below.

Roger Goodell. As stated in my decision on the NFLPA's Motion to Recuse, I do not

have any first-hand knowledge of the events at issue here. Nor did I play a role in the investigation that led to Mr. Brady's discipline or in any "preliminary findings" against the Patriots concerning an apparent violation of League rules.

The principal basis that the NFLP A advances for requiring my testimony -- an asserted delegation of my disciplinary authority to Mr. Vincent-- is based on a mistaken premise: As made clear in my June 2, 2015 ruling on the NFLP A's Motion to Recuse, I did not delegate my disciplinary authority to Mr. Vincent. Instead, I concurred in his recommendation and authorized him to communicate to Mr. Brady the discipline imposed under my authority as Commissioner. This procedure has been employed in numerous disciplinary proceedings over the past two decades and has never before been asserted as a basis for compelling the

Commissioner or anyone else to testify in an Article 46 disciplinary proceeding.

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Page 2

For these and other reasons stated in my June 2, 20 IS Decision, my testimony is not necessary or appropriate for a full and fair hearing. Accordingly, the NFLP A's motion to compel my testimony is denied.

JeffPash. JeffPash, the NFL's general counsel, does not have any first-hand knowledge of the events at issue here. Nor did he play a substantive role in the investigation that Jed to Mr. Brady's discipline; his role was limited to facilitating access by Mr. Wells to witnesses and documents.

Before the investigation got underway, there was consideration of Mr. Pash's playing a co-lead role with Mr. Wells in the investigation; that consideration was reflected in a public statement issued by the League. But as the Wells Report itself makes clear, Mr. Pash did not play any such role; the Wells Report was "prepared entirely by the Paul Weiss investigative team and presents the independent opinions of Mr. Wells and his colleagues."

Thus, even without regard to privilege issues, Mr. Pash's testimony is not necessary or appropriate for a full and fair hearing. The NFLPA's motion to compel Mr. Pash's testimony is therefore denied.

Troy Vincent. The NFLPA seeks an order compelling testimony from Mr. Vincent in two subject matter areas. One is Mr. Vincent's "involvement in the game-day events during the AFC Championship Game." The Management Council opposes an order compelling such testimony on several grounds, including its argument that Mr. Vincent's testimony on that subject would be cumulative of, and Jess direct than, the testimony from other game-day witnesses that it has agreed to make available. Because Mr. Vincent does have first-hand knowledge of some events that occurred at the AFC Championship game, I grant the NFLP A's motion to compel Mr. Vincent to testify on that subject.

To the extent that the NFLPA seeks an order compelling testimony from Mr. Vincent regarding a purported delegation of my Article 46 authority, its motion is denied. As stated above and in my June 2, 2015 Decision, I did not delegate my disciplinary authority to Mr. Vincent; I concurred in his recommendation and authorized him to communicate to Mr. Brady the discipline imposed under my authority as Commissioner.

Theodore Wells. As the Management Council observes in its letter, Mr. Wells is not a witness with first-hand knowledge of the events at issue. Nonetheless, he supervised the investigation and preparation of the Investigative Report that serves as the basis for Mr. Brady's discipline. His testimony regarding the substance and conclusions of his report is therefore appropriate in the context of a full and fair hearing. Accordingly, while privilege or relevance objections may be raised with respect to specific questions that he may be asked, the NFLPA's motion to compel his testimony on the substance and conclusions of his report is granted .

• • ROGER GOODELL

Commissioner

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Page 3

Through the course of the hearing, should the parties present evidence showing that the testimony of a witness identified above (or, in Mr. Vincent's case, testimony in additional areas) is necessary for a full and fair hearing, I will revisit the NFLP A's motion to compel his

testimony. In particular, I note that Mr. Wells may be asked whether Mr. Pash played a substantive role in the investigation; if the answer is in the affirmative, I will revisit that ruling with respect to Mr. Pash's testimony.

In the meantime, counsel for the NFLP A may allocate to other witnesses the 45 minutes that, in their separate letter of June 19,2015, they had estimated would be required for questioning of Mr. Pash and of me.

• • The NFLP A's motion to compel also seeks an order directing that all witnesses testify

under oath. The Management Council apparently took the position in the meet-and-confer process that it would object to witnesses being called to testify under oath, including in particular Mr. Wells.

I would expect that statements or testimony from any potential witness identified in this proceeding would not vary based upon whether the witness had or had not sworn an oath to tell the truth. Nonetheless, if either counsel prefers that a witness testify under oath, the witness shall do so. The NFLPA's motion as to this issue is granted.

II. Discovery

The NFLP A seeks an order compelling the production of interview notes and memoranda generated by Paul, Weiss attorneys in the course of their investigation. The Management Council opposes that motion, pointing out that it has provided the NFLP A with not only the Wells report but also the extensive collection of documents generated by the NFL and considered by Paul, Weiss in preparing the report.

On this issue, my starting point is Article 46 of our Collective Bargaining Agreement. As Judge Jones held in ruling on discovery in the Ray Rice proceeding:

"The bargained-for procedures include "discovery" limited to the production of all documents that will be relied upon at the hearing at least three days prior to said hearing. NFL-NFLPA CBA, Art. 46 § 2(f)(ii). 'Arbitrators are bound by the language of the contract, but equally important is that they are restricted by what the language of the contract does not say.' Carrollton Bd. ofEduc., 09-2 Lab. Arb. Awards (CCH) P 4632, at 8 (2009) (Allen, Arb.). Here, the collective bargaining agreement provides for tightly circumscribed discovery and does not contemplate the production of any other documents in an Article 46 proceeding other than under those terms."

The provision to which Judge Jones referred, Article 46, Sec. 2 (f)(ii), provides:


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Page4

"Discovery. In appeals under Section I (a), the parties shall exchange copies of any exhibits upon which they intend to rely no later than three (3) calendar days prior to the hearing. Failure to timely provide any intended exhibit shall preclude its introduction at the hearing."

In interpreting the parties' intention under Article 46 of the CBA, it is important to me that the parties agreed to permit much more extensive discovery in other kinds of proceedings under the CBA. For example, Article 15, Section 3 provides that in any dispute over which the System Arbitrator has authority, "the System Arbitrator shall grant reasonable and expedited discovery upon the application of any party where, and to the extent, he determines it is reasonable to do so." This demonstrates that where the parties intended to allow traditional, court-like discovery, they knew how to do so, and it reinforces the significance of the fact that there is no such provision for Article 46 disciplinary proceedings before the Commissioner.

Furthermore, the parties' agreement to limit discovery is consistent with the Article 46 design, which anticipates a reasonably efficient, expedited appeal proceeding conducted before a Commissioner who may be (and is this case is) a business executive rather than a lawyer.

As Judge Jones held, "the collective bargaining agreement provides for tightly circumscribed discovery and does not contemplate the production of any other documents in an Article 46 proceeding other than under those terms." In short, on the basis of my interpretation of the Collective Bargaining Agreement, I deny the NFLPA's motion for discovery.

There are other independent grounds for my decision to deny the NFLPA's motion. First, I did not review any of Paul, Weiss' internal interview notes or any other documents generated by Paul, Weiss other than their final report. The Paul, Weiss interview notes played no role in the disciplinary decisions; the Wells Report was the basis for those decisions. The Management Council has produced to the NFLP A that report, which contains a detailed accounting of witness comments, and Mr. Wells will be available to testify about the substance and conclusions of the report.

In addition, I understand that the Management Council produced all of the NFL documents considered by the investigators in preparing their report, including notes of interviews conducted by in-house NFL investigators prior to the time that the Paul, Weiss investigation began.

Accordingly, there can be no reasonable dispute that the NFLPA and Mr. Brady know, in considerable detail, the facts concerning the allegations on which the discipline was based and that they can properly prepare a response and participate fully in the hearing. Thus, even if discovery of the internal Paul, Weiss work product were permitted by the CBA, it would not be necessary for a full and fair hearing.


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Page 5

Second, the memoranda and interview notes generated by Paul, Weiss are not "ordinary course of business" documents. They are attorney work product of a kind that is ordinarily protected from discovery. That is especially true in circumstances, such as those presented here,

where based on the NFLPA's recent court challenges to discipline imposed on players, litigation challenging any discipline imposed could reasonably be anticipated.

Third, with respect specifically to notes of the interview of Mr. Brady himself(and perhaps others), I understand that NFLP A counsel were present for the interview itself, undermining any basis for seeking the Paul, Weiss work product.

Finally, the NFLPA has not identified any material factual dispute that Paul, Weiss' internal work product would help to resolve.

For each of these independent reasons, the NFLPA's motion to compel discovery of Paul, Weiss internal memoranda and witness interview notes is denied.

~ R~GOODELL


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CONFIDENTIAL NFLPA_BRADY003265


June 2, 2015

ARTICLE 46 APPEAL OF TOM BRADY

Re: Decision on NFLP A's Motion to Recuse

ROGER GOODELL

Commissioner

Our Collective Bargaining Agreement provides that "at his discretion," the

Commissioner may serve as hearing officer in "any appeal" involving conduct detrimental to the

integrity of, or public confidence in, the game of professional football. I will exercise that

discretion to hear Mr. Brady's appeal.

I have carefully reviewed the NFLPA's recusal motion of May 19 as well as Mr. Nash's

response of May 22. (Neither party requested to be heard on the matter.) Based on the

unambiguous language and structure of the CBA, as well as common sense, I conclude that none

of the arguments advanced by the NFLP A has merit.

First, the NFLPA argues that I may not serve as hearing officer because Mr. Brady's

discipline letter was signed by NFL executive vice president Troy Vincent rather than by me. I

disagree. The identity of the person who signed the disciplinary letter is irrelevant. The

signatory's identity does not influence in any way my evaluation of the issues; any suggestion to

the contrary defies common sense. (I note that NFL executives other than the Commissioner

have signed disciplinary letters in numerous proceedings in which the Commissioner or his

designee later served as hearing officer. I am not aware of any objections by the Union to that

practice. To the contrary, as Mr. Nash's letter points out, the Union has confirmed its acceptance

of this procedure.)

There can be no dispute that this is an appeal of Commissioner discipline: As the letter

signed by Mr. Vincent explains in its first sentence, "The Commissioner has authorized me to

inform you of the discipline that, pursuant to his authority under Article 46 of the CBA, has been

imposed upon you .... " I did not delegate my disciplinary authority to Mr. Vincent; I concurred

in his recommendation and authorized him to communicate to Mr. Brady the discipline imposed

under my authority as Commissioner.

Even if there were a procedural issue raised by the identity of the signatory to a discipline

letter that I authorized, no reason or logic -- and certainly nothing in the CBA --would support

recusal as the remedy. After all, the CBA provides that "the Commissioner may serve as hearing

officer in "any appeal" involving conduct detrimental to the integrity of the game.

345 Park Avenue, New York, New York 10154 Tel (212) 450-2000 Fax (212) 681-7574


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Second, the NFLP A argues that recusal is required because it believes that I may be a "necessary" and/or "central" witness in the appeal proceeding. I have carefully considered this argument and reject its premise. I am not a necessary or even an appropriate witness, much less a "central witness" as the NFLP A contends.

I do not have any first-hand knowledge of any of the events at issue. (That fact makes this matter very different from the Rice appeal, in which there was a fundamental dispute over what Mr. Rice told me in a meeting at the league office.) Nor did I play a role in the investigation that led to Mr. Brady's discipline. Furthermore, there is no reasonable basis for dispute -- or for any testimony -- about authority for the discipline reflected in the letter signed by Mr. Vincent. The letter itself is clear on this point. And there is no basis for my testifying about prior instances in which discipline was considered or imposed for similar conduct; if that were the case, the NFLP A could seek my recusal in every conduct detrimental proceeding, directly contrary to our agreement that I have the "discretion" to hear "any" appeal.

Regardless, my knowledge of any underlying facts in this matter would not provide a basis for recusal. The CBA contemplates such knowledge and expressly provides that the Commissioner may hear and decide "any" appeal of conduct detrimental discipline.

Accordingly, there is no basis upon which I could properly be asked to testify in the appeal proceeding, which under Article 46 of the CBA is designed to afford Mr. Brady an opportunity to bring new or additional facts or circumstances to my attention for consideration.

Third, tl1e NFLP A argues that recusal is required because I have "prejudged" the matter and carmot fairly evaluate the potential testimony ofleague staff members. After carefully considering this argument, I reject it.

The process by which discipline is imposed for conduct detrimental, and by which appeals of disciplinary decisions are heard, has been in place for many years and is well known to the parties. That includes the role of league staff in the proceedings and the likelihood that the Commissioner will have some knowledge of the underlying facts.

When the parties agreed in the Collective Bargaining Agreement to continue the provisions confirming the Commissioner's "discretion" to hear "any" appeal of a player facing discipline for conduct detrimental, they clearly understood (a) that such appeals regularly involve testimony by league staff about the issues and events in dispute and (b) that if the Commissioner has taken some action against the player for conduct detrimental and given him notice of impending discipline, he necessarily would have reached an initial conclusion about the player's actions. Nonetheless, the parties' agreement that the Commissioner may serve as hearing officer in "any appeal" could not be more clear. Thus, neither of those two factors can serve as a basis for recusal.

Nor have I "prejudged" this appeal. I have publicly expressed my appreciation to Mr. Wells and his colleagues for their thorough and independent work. But that does not mean that I am wedded to their conclusions or to their assessment of the facts. Nor does it mean that, after considering the evidence and argument presented during the appeal, I may not reach a different

2 ROGER GOODELL

Commissioner


SPA68



conclusion about Mr. Brady's conduct or the discipline imposed. That is true even though the ..

initial discipline decision was reached after extensive discussion and in reliance on the critical

importance of protecting the integrity of the game. As I have said publicly, I very much look

forward to hearing from Mr. Brady and to considering any new information or evidence that he

may bring to my attention. My mind is open; there has been no "prejudgment" and no bias that

warrants recusal.

I have considered the cases cited by the NFLPA, Morris, Erving, and Hewitt. I agree

with Commissioner Tagliabue's reasoning in the Bounty proceeding, in which he denied the

NFLPA's motion that he recuse himself. Those cases are not applicable in an appeal governed

by a collective bargaining agreement, especially one that so clearly reflects the parties' intentions

about the Commissioner's authority, discretion, and role. As Commissioner Tagliabue stated:

"No change in the Collective Bargaining Agreements between 1977 and the present day has ever

abrogated the sole authority of the Commissioner to preside" in appeals involving discipline for

conduct detrimental to the integrity of the game. This recusal motion, and others like it,

represent nothing more than an effort by the NFLP A to renegotiate Article 46 of the current

Collective Bargaining Agreement, signed in August 2011.

Because protecting the integrity of the game is the Commissioner's most important

responsibility, I decline to rewrite our Collective Bargaining Agreement to abrogate my authority

and "discretion" to hear "any appeal" in a conduct detrimental proceeding.

The motion for recusal is denied. We will proceed with the hearing on June 23, as

previously scheduled.

3 ROGER GOODELL

Commissioner


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I hereby certify that, on October 26, 2015, an electronic copy of the foregoing

Special Appendix was filed with the Clerk of Court using the ECF system and

thereby served upon all counsel appearing in this case.

s/Paul D. Clement Paul D. Clement


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