Roger Goodell and the NFL are not, and never will be, fair

If you have a cell phone or a credit card, you are almost certainly subject to an arbitration clause. This clause offers you no real benefits and serves only to make life better for the company that issued you that phone or credit card, as it prevents you from suing the company on your own or joining a class action.

Should you feel you’ve been mistreated by this company, the arbitration clause means they determine how and where and on what terms your complaint will be addressed, and the companies have a very, very good winning percentage.

Tom Brady, like every other NFL player, is subject to an arbitration clause -- this is one of the few things you have in common with him, so congrats -- which dictated how and where he could object to Roger Goodell’s decision to suspend him for four games. Those terms did not favor Tom Brady, which you probably figured out given that Roger Goodell was allowed to serve as the arbitrator and determine whether to uphold his own decision.

The biggest advantage the NFL had? Federal courts really don’t like to overturn arbitration outcomes, because the whole point of arbitration is to avoid going to court. Judge Richard Berman’s review of the matter was limited to how Goodell and the NFL conducted the arbitration, not their factual determinations. To vacate Brady’s suspension, Berman had to find that the NFL’s arbitration was a fundamentally unfair process. And that’s exactly what he did, on the grounds that Brady was unfairly denied access to evidence and witnesses and given a punishment far harsher than what he reasonably could have expected under league rules.

There’s a twisted irony to the fact that Roger Goodell claims to act in the name of fairness and integrity and keeps finding his decisions reversed when federal judges find that they lack both. We react to these judicial rebukes by criticizing Goodell as a power-hungry tyrant who doesn’t act with anything resembling restraint. Goodell’s more interested in getting what he wants than treating players fairly, and we demand better.

Those are all good reasons why the commissioner shouldn’t be serving as a supposedly neutral third party arbitrator. Beyond that? It’s worth considering how small a role fairness plays in the NFL. Franchises don’t threaten to move to extract taxpayer funds for new stadiums because it’s fair. They do it because it’s strategic. It’s not inherently fair that player contracts are largely unguaranteed, but it’s advantageous for the owners.

Realistically, referees are the only part of the NFL machinery paid to enforce fairness. Everyone else has an agenda, and they want to bend the rules, or at least walk up to the limit of them, in pursuit of winning something. General managers do it by offering contracts to players before they’re formally allowed to do so. A free safety’s happy to take a defensive holding penalty if it means he doesn’t give up a 50-yard touchdown. Coaches tell players to go down with a cramp if they want to slow the opposing offense down.

So it’s probably foolish to expect Roger Goodell to be all that different. His position exists because of the owners, and the NFLPA serves as his opposition. Goodell’s job isn’t to fight for fairness - it’s to get the owners wins wherever he can. That might be increased TV distribution revenue or more favorable terms for ownership in the CBA. It might be projecting (or at least attempting to project) that the NFL cares about sending a strong message to players who commit misdeeds off the field.

In the Brady case, it was demonstrating, to a fault, that the league won’t allow cheaters, even if it’s unclear who, if anyone, did the cheating or how much the cheating changed anything. Roger Goodell may personally believe his word is law, but the owners know they’re in a better position when the commissioner appears strong and in control.

That’s why the NFL wasn’t terribly interested in reaching a settlement with Tom Brady, and why they’ll appeal Berman’s decision even though it likely won’t get them anywhere. Goodell and the owners want the commissioner’s power to punish players under the vague “conduct detrimental” clause to be as expansive as possible. That’s not a matter of fair or unfair, it’s simply advantageous to have that power, especially when the next collective bargaining agreement needs to be negotiated.

We’re pissed at Goodell because he’s not acting like Ed Hochuli, but that’s been the wrong comparison all along. Roger Goodell and the owners are throwing deep passes with a big lead late in the second half. They’re not worried about being fair. They’re trying to beat the Players Association, and if the NFLPA doesn’t like it, well, go out there and get a stop. It just so happens they did with Judge Berman.