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Thursday, July 30, 2015

(This post in authored by Alan Milstein)

Sometimes lawyers can outthink themselves.

Much has been written about where Tom Brady was going to file his Motion to Vacate the Commissioner’s arbitration decision. The good money was on Minnesota because the Union has had so much success in that forum particularly with Judge David S. Doty presiding.

Probably for that reason, the NFL sought to blitz the Brady team by simultaneously filing a Petition to Confirm the award at the moment it released the decision. Brady and the Union nevertheless filed the Petition to Vacate in federal court in Minnesota, believing a friendly court would ignore the first-to file-doctrine on the grounds that the NFL had too much of an advantage in choosing the forum. Unfortunately for the Brady Bunch, they did not draw Judge Doty and Judge Richard Kyle promptly transferred the case to New York.

Here's the irony. The Federal Arbitration Act at Title 9 of the U.S. Code sets forth the grounds by which a federal court can vacate an arbitration award. The critical one for this case is “where there was evident partiality . . .in the arbitrator.” What is absent from the applicable provision is what used to be the reason of choice: "manifest disregard of the law." While under this rubric, an arbitration award cannot be reversed for an error of law or a misreading of the facts, it can be vacated if the arbitrator intentionally ignored well-settled law. For example, if the arbitrator knows the statute of limitations is two years, he or she cannot use one or three years as the time to bar an action.

The Circuits are split as to whether manifest disregard of the law is still a reason for vacating an arbitration award. While the Eighth Circuit, which includes Minnesota, has not exactly been consistent on this issue, it generally says it is not. The Second Circuit, on the other hand, which includes New York, says that it is. Compare Medicine Shoppe Int'l v. Turner Invs., Inc.614 F.3d 485, 489 (8th Cir. 2010, with Stolt-Nielson SA v. Animal Feeds Int’l, 548 F.3d 85 (2d Cir. 2008). See also Jay Packaging Group, Inc. v. Mark Andy, Inc,, 2011 U.S. Dist. LEXIS 5721 (E.D. Mo. January 21, 2011) ("[t]he Eighth Circuit has specifically address[ed] this issue, and concluded that a party's attempt to vacate or modify an arbitration award on the basis of an alleged manifest disregard of the law is not a cognizable claim," and "it is well established in the Eighth Circuit that the 'manifest disregard of the law' doctrine is no longer good law.").

Thus, Brady and his team are actually better off in Giants territory than they would be in the land of the Vikings. This would certainly be a critical play for Brady to call given that the under-inflation rule appears to apply only to teams not players and carries only a $25,000 fine.

My bet is still that Brady plays every game.

-- Alan Milstein


Very good point. Your post is one of the few in which the "manifest disregard" standard is discussed. It points to a very high hurdle to overturn an arbitrator's ruling. However, it is my sense that judges have the Goodell's number (so to speak) because of the haphazard manner in which the NFL meted punishment and the fact that he is judge, jury and appeals court. I realize that this power is given to him under art. 46 of the CBA, but below the surface of that language is a concern that he is using his powers beyond a sense of industrial due process.

Anonymous Mark Conrad -- 7/30/2015 11:35 PM  

Except Brady wasn't suspended for violating that rule. He was punished for cheating, or at the least conspiring to cheat which seriously undermines public confidence and integrity of the league. If you look at the NFL's press release ( the last paragraph makes clear that Brady was suspended for conduct detrimental.

Granted, the NFL does a terrible job of making this distinction by talking about the Integrity of the Game Policy at length prior to discussing Brady's suspension. To me it absolutely clear that he was punished under the Commissioner's broad powers to suspend for conduct detrimental.

Blogger AndrewSensi -- 7/31/2015 10:21 AM  

Great and I sure hope the Brady team wins here. It seems so ridiculous to be going to court over the psi in footballs? I find the new ruling this year interesting where they will be checking the psi before, during, and randomly. I'm interested in the science of it and if they will deflate somewhat from the cold. Not all teams play outside and that makes a large difference. I believe the Colts play inside and perhaps didn't realize this? Not sure about that although it appears the owner amongst some other one's just do not like the Patriot's. I find that to be pure jealously. Looking forward to a great football season and all can be done with this law suit and we can enjoy another season of football!

Thank you sir for your comments..


Blogger Dodie4 -- 8/01/2015 8:34 AM  

That's another great point Andrew, in the NFLPA/Brady's favor. The NFL keeps changing exactly what Brady was punished for.

That's why the court is going to throw this damn thing out.

Anonymous Anonymous -- 8/15/2015 11:10 AM  

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