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Take the four game suspension, Tom Brady. It is not about the pride nor the money, but the uphill legal battle that the New England Patriots quarterback faces if he seeks to vacate the National Football League's final decision to suspend Brady without pay for four games as a result of purportedly being involved in a scheme to deflate footballs. While Brady will likely not back down and instead focus his efforts on legal warfare against the NFL, he may be disappointed with the results. Here is a look at legal issues that Brady may confront in the near future.
The Highly Unlikely Injunction
Brady's main interest is to be back on the football field for the start of the 2015 NFL season. Instead, he is currently slated to be sidelined until the Patriots play their fifth game of the season. Thus, Brady's legal strategy will likely include the attempt to obtain an injunction -- temporarily halting the NFL from imposing any punishment and staying such punishment until a decision is reached by a court of law after sifting through all relevant evidence.
However, earning an injunction is rather unlikely. Brady may not have much trouble is in demonstrating that it is less harmful for the NFL if a court of law allows him to play (temporarily) than if he is forced to sit, and that it is in the public's interest that Brady be on the field (unless you are a fan of the New York Jets or Miami Dolphins). The more problematic point for Brady to prove is that he has a likelihood of success on the merits (the following sections flesh that out a bit). The toughest obstacle for Brady is that he must show that he is likely to be irreparably harmed if he is forced to sit out four games.
Can Brady be adequately compensated by monetary damages if the NFL's final decision is vacated? Brady is missing four games and four pay checks. The calculation is quite easy. Meanwhile, his body will not take any devastating blows for those four games. Furthermore, he is inching toward the end of his career and benching Brady should have no effect on his future contractual negotiations. Thus, if the NFL's final decision is vacated and Brady is paid the monies missed for those four games on the bench, then how is he not adequately compensated for the harm that was caused by the final decision? This alone could be the impetus for a court denying a motion for preliminary injunction.
A Game of Jurisdiction
The NFL, in close proximity to publishing its final decision to uphold the four game suspension against Brady, filed a lawsuit in a New York federal court seeking to have the court confirm the arbitration decision. Losing parties in arbitration have the right to petition to vacate an award. Similarly, prevailing parties may rush to a court of law to confirm an arbitration opinion. That is exactly what the NFL did with Brady.
It was a tactical play for sure. By filing in New York, the NFL will likely be able to have its case heard (and any petition by Brady to vacate the NFL's decision) on its home turf. Meanwhile, it could also preclude Brady from filing his own action to vacate the four game suspension (including a motion to preliminarily enjoin the NFL from holding him out for the first four games of the season) in Minnesota, and specifically in front of Judge David Doty, whom has ruled in favor of NFL players and its union on multiple occurrences.
Federal courts typically follow the first-filed rule. When there are two actions with overlapping parties and issues that are filed in separate jurisdictions, the jurisdiction that first received a filing will typically oversee the dispute. "[T]here is a strong presumption across the federal circuits that favors the forum of the first-filed suit under the first-filed rule," states the Eleventh Circuit court case of Manuel v. Convergys Corp.
Thus, if Brady wants to play ball, then it will likely be in the NFL's stadium: New York.
Brady Destroying 10,000 Text Messages
The NFL's final decision includes the following: "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 cellphone. At the time that he arranged for its destruction, Mr. Brady knew that Mr. Wells and his team had requested information from that cellphone in connection with their investigation."
That could serve as a major problem for Brady in an effort to vacate the final decision. Essentially, it could be determined that Brady engaged in spoliation of evidence -- that he violated a duty to preserve evidence (his cellphone and its roughly 10,000 text messages) during the pendency of the investigation and during his appeal of the four game suspension. Courts have treated spoliation of evidence in different ways and will, at times, sanction an individual for purposefully destroying what could be meaningful evidence. Here, the NFL maintains that the text messages expressly referred to inflation and deflation of footballs as well as "needles" in the context of deflating footballs. A court of law may look at this and be reluctant to vacate a decision; it does not make Brady appear to have been acting in good faith when he failed to hold on to highly relevant evidence with knowledge of the likelihood of an appeal and an adverse decision.
The Difficult Standard to Vacate
Courts are extremely reluctant to interfere when parties to a dispute agree that underlying issues are to be resolved through binding arbitration proceedings. A court will ask the following question: Did the parties agree to submit the issue itself to arbitration?
"This decision is issued pursuant to Article 46 of the Collective Bargaining Agreement between the NFL and the NFLPA, 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,'" states the NFL's full decision.
Brady, as a member of the NFLPA, would have a hard time explaining why he agreed to be bound by a process that he later believed to be unjust.
The full decision continues by stating, "[u]nder 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."
Yet, Brady is not out of options. Despite agreeing to a particular system by which certain matters are arbitrated, if he proves any of the following, then the final decision could be vacated by a federal court. Under 9 U.S. Code § 10, Brady would have to prove: (1) that the award was procured by corruption fraud or undue means; (2) that there was evident partiality or corruption in the arbitrator; (3) that the arbitrator was guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of Brady was prejudiced; or (4) that the arbitrator exceeded his powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
The problem with claiming that there was evident partiality is that Brady and the NFLPA agreed to a system that allowed for Commissioner Goodell, a potentially biased arbitrator, to serve in such a position. The odds are stacked against Brady, but he appears poised to fight.
Darren Heitner is a lawyer and the Founder of South Florida-based HEITNER LEGAL, P.L.L.C., which has a focus on Sports Law and Entertainment Law.
