Sports Law Blog
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Saturday, September 02, 2017
Some thought Goodell and the NFL would learn from its mistakes in Deflategate. After all, but for his Hail Mary to the Second Circuit, things looked mighty grim for the Commissioner after Judge Berman’s decision in the District Court. But instead the NFL was so emboldened by its ultimate victory over the best quarterback in the league, it doubled down in imposing the six game suspension on the game’s top running back. Quite a marketing plan.
It’s not just that the investigation involved the actions of Mr. Elliot while he was technically still a college athlete and had not yet signed an NFL contract. It’s not just that the authorities investigating the incident at the time, when the facts were fresh, could not come to any conclusion one way or the other that wrongdoing had occurred.
In this case, the NFL assigned Kia Roberts alone the task of interviewing the complaining party and Ms. Roberts, a former New York Assistant District Attorney hired to be the NFL’s Director of Investigations, did not believe a suspension was warranted. The NFL did not ask for Ms. Roberts’ recommendation and, among other procedural missteps, did not give Mr. Elliot and his counsel the opportunity to confront the accuser, a basic tenet of due process.
The NFL did think that, by appointing Mr. Henderson to serve as the arbitrator instead of Mr. Goodell, it would eliminate any criticism that the Commissioner was cop, judge, jury and executioner. But Mr. Henderson, always a company man, was anything but an independent decision maker. Had they chosen someone outside the NFL cabal, they might have stood a better chance of not having the suspension suspended and ultimately revoked. But then, that independent arbitrator may have decided differently.
Curiously, and as our colleague Dan Wallach predicted, Mr. Elliot and the NFLPA filed a petition to overturn the suspension in a Texas Federal District Court, a thousand or so miles from the Second Circuit’s jurisdiction, before the arbitration process was concluded, getting the jump on the NFL which had first filed against Brady the moment it was issuing its final ruling.
This time the argument may not be limited to this or that procedural defect at the arbitration, which allowed the Second Circuit to reverse what was surely Judge Berman’s correct result, considering there was actually no competent evidence that any footballs were deflated. Here, as well as in Deflategate, it is the ruling itself that is the best evidence that something is surely amiss in the manner in which the NFL conducts its arbitrations and disciplines its stars.