DeflateGate will not die until Roger Goodell gets his way

The appeal isn’t a surprise, the NFL is following through on a promise it made after Berman’s ruling in September, but it does mean a revisitation to a story many might have thought was over nearly two months ago.

Why the NFL would want to exhume a story that ended poorly for commissioner Roger Goodell and the league is a good question. Yahoo’s Frank Schwab nailed the crux: “It would appear the NFL doesn’t want commissioner Roger Goodell’s authority questioned, and not fighting the vacation of Brady’s suspension would invite others to pick holes in an unfair process.”

In September, Berman did not necessarily exonerate Brady of wrongdoing, but he did take issue with how Goodell and the NFL handled the case. Berman wrote that there was no precedent that Brady could be suspended four games for having knowledge of tampered footballs, and that the league had misapplied its “conduct detrimental” standard that had been cited in the punishments of Ray Rice and Adrian Peterson.

Berman also noted that the NFL refused to let league executive Jeff Pash testify at Brady’s appeal in June and withheld notes from Brady’s attorney. Pash was attached to the Ted Wells report as a “co-lead investigator” into Brady’s involvement in deflating football’s, but the NFL denied that he had enough of a role in the investigation to warrant testimony in Brady’s appeal.

Goodell admitted himself that the league isn’t looking for retribution for DeflateGate so much as preserve the power it has under the collective bargaining agreement as it believes it should be defined.

The NFL is arguing that Goodell acted within the authority granted him by the NFL’s CBA. The introduction to its appeal document laid out why Brady’s behavior was indeed “conduct detrimental.”

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.

Berman, Brady, the Patriots and the NFLPA disagree, and all parties may also take issue with the CBA itself. The NFL is correct that the agreement grants Goodell extensive authority to mete out punishment as he sees fit. He was seemingly within his power when he refused to recuse himself from hearing Brady’s initial suspension appeal to the NFL. To make its case, the NFL beefed up its legal team, adding a former U.S. solicitor general who argued against the NFLPA during the 2011 lockout among three new members.

The NFL wrote:

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.

“Reasonably judged” may be a key phrase in the appeal. The CBA assumes that the commissioner will act with basic fairness, something that Berman determined Goodell did not do in Brady’s case. It’s rare that arbitration decision be overturned, particularly in New York’s Southern District, and the NFL was certain it had legal precedent on its side in September. The fact that the arbitrator in this case was also the league’s commissioner, however, made it unique.

It’s difficult to say how the NFL will fare in its latest go at Brady and the legal system. The league may have no other choice but to fight if it wants to uphold the authority it fought to put in the CBA, however.