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NFL Permitted To Impose Grossly Disproportionate Punishment For Offense That Wasn’t Committed

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Four federal judges have heard Tom Brady’s appeal of the ludicrous suspension imposed and upheld by Roger Goodell, and they have split 2-2 on its legality. Unfortunately for Brady, as virtually every observer of the oral argument expected 2 of the 3 who voted with the league were on the circuit court panel, so he will almost certainly be out for four games. This is regrettable, although getting an arbitration award overturned is always enormously difficult and the conclusion that he was within his formal legal authority is reasonable.

Chief Judge Katzmann raised two fundamental points in his dissent, one more persuasive than the other. The stronger argument pertains to the bait-and-switch Goodell pulled at the arbitration stage, citing additional “evidence” not contained in the Wells report. The NFL CBA requires that clear advance notice be provided to players before punishments are imposed. The dissent argues that Goodell, by citing findings not in the Wells report failed to provide notice and hence exceeded his authority. It’s worth noting that the majority concedes that Goodell did not have the authority as arbitrator to impose a punishment based on materially different findings from the original decision; the dispute between the opinions is based on facts, not on the controlling legal standard. It’s a close question, but I found the analysis in the dissent more persuasive.

The second argument made by the dissent was that Goodell did not adequately defend the decision to impose an unprecedented sentence that went far beyond the penalty for similar offenses mandated by the CBA:

Yet, the Commissioner failed to even mention, let alone explain, a highly analogous penalty, an omission that underscores the peculiar nature of Brady’s punishment. The League prohibits the use of stickum, a substance that enhances a player’s grip. Under a collectively bargained-for Schedule of Fines, a violation of this prohibition warrants an $8,268 fine in the absence of aggravating circumstances. Given that both the use of stickum and the deflation of footballs involve attempts at improving one’s grip and evading the referees’ enforcement of the rules, this would seem a natural starting point for assessing Brady’s penalty. Indeed, the League’s justification for prohibiting stickum—that it “affects the integrity of the competition and can give a team an unfair advantage,” is nearly identical to the Commissioner’s explanation for what he found problematic about the deflation—that it “reflects an improper effort to secure a competitive advantage in, and threatens the integrity of, the game.”

Notwithstanding these parallels, the Commissioner ignored the stickum penalty entirely. This oversight leaves a noticeable void in the Commissioner’s decision,6 and in my opinion, the void is indicative of the award’s overall failure to draw its essence from the CBA. Even taking into account the special circumstances here—that the alleged misconduct occurred during the AFC Championship Game, that team employees assisted in the deflation, that a deflated football arguably affects every play, and that Brady failed to cooperate in the subsequent investigation—I am unable to understand why the Commissioner thought the appropriate penalty was a four-game suspension and the attendant four-game loss of pay, which, in Brady’s case, is far more than $8,268. The lack 1 of any meaningful explanation in the Commissioner’s final written decision convinces me that the Commissioner was doling out his own brand of industrial justice.

As an argument about the merits of Goodell’s decision, this argument is unanswerable — the punishment was irrational and grossly disproportionate. But it’s not the appellate court’s job to determine the defensibility of the suspension on the merits, and on this point I agree with the majority that the CBA did not require Goodell to consider analogous punishments or forbid an arbitrary and unprecedented punishment, even one as extreme as this. If Goodell exceeded his authority, it was by denying Brady’s right to advance notice.

Given the extreme unlikelihood that 2CA will grant an en banc appeal or the Supreme Court would grant cert, this is now a football story. And as a football story, Goodell’s actions remain as outrageous as ever. The suspension of Brady for 4 games has a significant impact on the NFL season, and even if Brady and the Patriots were guilty as charged, the offense merited no more than a five-figure fine. And, of course, they weren’t:

Brady liked his footballs at the lowest p.s.i. in the range — 12.5. The consultants concluded that the drop in the p.s.i. of the Patriots’ footballs — the average was 11.3 p.s.i. — could not be fully explained by the Ideal Gas Law; it was too steep. But the smaller drop in the p.s.i. of the Colts’ footballs could indeed be explained by the laws of physics.

Numbers in hand, Leonard went to work. He bought the same gauges the N.F.L. used to measure p.s.i. levels. He bought N.F.L.-quality footballs. He replicated the temperatures of the locker room, and the colder field. And so on. When he was done, he concluded that Exponent had made a series of basic errors. Leonard’s work showed the exact opposite of Exponent’s conclusions: The drop in the Patriots’ footballs’ p.s.i was consistent with the Ideal Gas Law; the smaller drop in pressure in the Colts’ balls was not. (Leonard surmises that because the Colts’ balls were tested after the Patriots’ balls, they had warmed up again.)

By early November, he had a PowerPoint presentation with more than 140 slides. By the end of the month, he had given two lectures about Deflategate, the second of which he had videotaped and posted on YouTube. A viewer who watched the lengthy lecture edited it down to a crisp 15 minutes; Leonard agreed to let him post the edited version.

The edited lecture went up on YouTube on Dec. 1 and has been viewed more than 17,000 times. It is utterly convincing. Leonard told me that if an M.I.T. undergraduate made the kinds of mistakes that Exponent made, “I would force them to repeat the experiment and correct the analysis.” Based on his study of the data, Leonard now says: “I am convinced that no deflation occurred and that the Patriots are innocent. It never happened.”

He is hardly the only scientist to take that position. As Dan Wetzel pointed out in a recent Yahoo Sports column, scientists at Carnegie Mellon, the University of Chicago, Boston College, Rockefeller University, the University of Illinois and Bowdoin College — and others — have all come to the same conclusion.

The season has been substantially affected by a suspension based on completely worthless junk science put forward by a for-hire chop shop, and also involves a severe punishment for an offense that would be trivial even if it had actually happened. Goodell may have been within his formal legal authority, but his actions were a disgraceful abuse of his powers, powers that need to be constrained in the next CBA.

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