Brady, NFLPA likely to come up short in federal court challenge

New England Patriots quarterback Tom Brady, the National Football League Players Association and their lawyers say they will ask a federal judge for an injunction that will prevent the NFL from enforcing the four-game suspension that commissioner Roger Goodell confirmed Tuesday in a detailed decision. Brady's threat of litigation and Goodell's decision raise questions about a court's role in a collectively-bargained arbitration process:

Question: Will Brady succeed in court and stop the NFL from suspending him for four games?

Answer: No, Brady will not succeed. Although he enjoys top-of-the-line legal representation and his lawyers will file a brilliantly written lawsuit, his effort to stop the suspension is doomed. There are two reasons why: First, federal judges are reluctant to reconsider the rulings of arbitrators; second, Goodell produced a decision on Brady that is brilliantly reasoned, meticulously detailed, and well-written. Goodell's recitation of the evidence of the tampering with game balls is powerful, and his description of Brady's attempt at a cover-up is persuasive.

Q: Why are federal judges reluctant to reconsider an arbitrator's decision?

A: If federal judges were to offer reviews of arbitrator decisions made throughout the nation, their dockets soon would be filled with arbitration cases. Throughout American business and industry, there are agreements to submit disputes to arbitration. It is viewed as a less-costly and more-efficient way to resolve issues. It avoids the expense and the endless delays of litigation. An essential element of any arbitration is that it is final and cannot be reviewed.

Federal judges understand the theory behind arbitration, and they are already inundated with criminal cases and thousands of civil lawsuits. They know that an arbitrator has considered the evidence, and the judges do not want a second look at the evidence. Even when the arbitrator is totally wrong, most federal judges will not reconsider the ruling. In a notorious case involving former Los Angeles Dodgers baseball player Steve Garvey at the U.S. Supreme Court in 2001, the high court ruled that even when the arbitrator's decision is "improvident or even silly," it does "not provide a basis for a court to refuse to enforce" the arbitrator's decision.

Q: But didn't a federal judge recently reverse an NFL arbitration ruling for Adrian Peterson?

A: Yes. U.S. District Court Judge David Doty in Minneapolis, who has presided over NFL litigation for 25 years, reversed the punishment imposed on Peterson. He based his ruling on what he thought was an egregious error by the NFL arbitrator -- the application of a new and harsher penalty to an incident that occurred before the adoption of the new penalty. The case is on appeal, and the NFL is likely to prevail in the appeal with the high court reminding Doty that federal judges should stay away from reviews of arbitrators' rulings.

Q: Bloomberg is reporting that the NFL filed a lawsuit in New York on Tuesday, beating the NFLPA and Brady to the punch. What's this about?

A: The NFL is clearly worried that Brady and his lawyers will file their lawsuit in Minneapolis, where NFL players have achieved historic triumphs over the NFL, including several decisions by Doty. The league attorneys filed their lawsuit first in New York, hoping that the league would have a greater chance of success. The league used a procedure known as a declaratory judgment lawsuit in its effort to win the race to choose the ultimate courthouse.

Q: What will Brady's lawyers argue in their attempt to reverse Goodell's ruling?

A: Led by the estimable Jeffrey Kessler, the Brady legal team will argue that Brady did nothing wrong, that the Wells report failed to establish that Brady had a role in the inflation of the game balls, that the penalty is too harsh, and that Goodell was not a neutral arbitrator. None of these arguments offers a compelling reason for a judge to reverse Goodell's decision. All of the arguments were raised in detail in the arbitration hearing, and Goodell answered each one of them in exquisite and persuasive detail in his 20-page opinion. It is difficult to imagine a judge reconsidering any of them. The players gave away the idea of a neutral arbitrator when they voluntarily agreed in collective bargaining that the commissioner would make the final decision in conduct detrimental cases.

Q: What evidence led Goodell to confirm the four-game suspension?

A: Goodell relied on evidence the Wells investigation, the 300 exhibits offered in the daylong hearing, and 450 pages of testimony. He also relied heavily on information that he did not learn during the hearing. Kessler and the NFLPA said there was no need for testimony from John Jastremski and James McNally, the Patriots employees who were involved in the machinations that led to the deflated game balls. The NFL attorneys argued, according to the Goodell opinion, that Goodell was entitled to make an "adverse inference" from Brady's failure to present key witnesses. Goodell went beyond the adverse inference and made a finding that both men lacked credibility in the statements they made to Wells. The Brady legal team also admitted that McNally had "more than enough time" during his famous 100-second visit into a locked bathroom to do what was necessary to deflate the balls.

Q: Was there other evidence that was important to Goodell?

A: Yes. Brady's refusal to cooperate with the Wells investigators and his destruction of his cell phone on the same day that he was to be interviewed by Wells were extremely important in Goodell's decision. Goodell said that the destruction of the cell phone was "very troubling." He added that it was clear that Brady made an "affirmative effort to conceal relevant evidence and to undermine the investigation." And Goodell took his reasoning one step further when he wrote that Brady's destruction of the phone "gives rise to an inference that information from his cellphone, if it were available, would further demonstrate [Brady's] direct knowledge of and involvement with the scheme to tamper with the game balls, just as he concealed for months the fact that he had destroyed the cellphone requested by the investigators."

Q: What was Brady's biggest mistake?

A: There was more than one. There is little doubt that Brady blundered when he refused to cooperate with the Wells investigators by turning over his phone and his text messages. He made it even worse when he destroyed the phone. And then, incredibly, after he had destroyed the phone, he and his lawyers suggested to Goodell that Brady routinely destroyed his old phones when he purchased a new one. The problem was that the Wells investigators had already found an old phone that Brady had not destroyed. But the worst mistake was a series of phone calls and text messages on the day after the Indianapolis game with Jastremski and a visit with him in the "QB Room." Goodell, in a brilliant passage in his masterly opinion, explained that the frantic calls in the three days after the game showed that Brady "was undermining efforts by game officials to ensure compliance with league rules."