By Dr. Jonathan Tiemann
In honor of Labor Day Weekend, here’s a note concerning a matter that could have surprising implications for organized labor:
Fans of the New England Patriots are no doubt celebrating yesterday’s ruling from US District Court in the Southern District of New York, which overturned NFL Commissioner Roger Goodell’s imposition of a four-game suspension on Patriots uber-star quarterback Tom Brady. But there’s another group that potentially gained even more from the ruling than Patriots fans did: Leaders of organized labor should see in the ruling a strengthening of both the role of collective bargaining agreements and protections for workers facing arbitrary and capricious workplace disciplinary action.
Mr. Goodell’s action, you’ll recall, stems from the Patriots’ apparent use of under-inflated footballs (in the NFL each team provides the balls for use when its offensive platoon is on the field) during last year’s AFC Championship Game. After investigating the incident, the League imposed sanctions on the Patriots, including a fine of $1 million and the loss of two future draft picks. At the same time, the League informed Mr. Brady that it would suspend him, without pay, for the first four games of the 2015 season. Mr. Brady asked for, and was granted, an arbitration hearing. Mr. Goodell appointed himself arbitrator at that hearing, and found in his own favor, reaffirming Mr. Brady’s suspension. Yesterday’s opinion resolved a pair of cross-motions: the NFL’s motion to confirm, and Mr. Brady’s (actually, and crucially, the NFL Players Association’s) to vacate, the suspension. Judge Hon. Richard M. Berman yesterday ruled in Mr. Brady’s favor.
Regardless of the high profile of the NFL, the Brady suspension is essentially a matter of disciplinary action in response to alleged workplace misconduct in the private sector. The courts, therefore, can only intervene to the extent that the disciplinary action runs afoul of either an existing collective bargaining agreement or established principles and statutes in employment law. The ruling in Mr. Brady’s favor therefore tends to strengthen protections for all workers, particularly those working under collective bargaining agreements.
According to the narrative in Judge Berman’s ruling, Mr. Goodell initially based the suspension on the investigation’s finding that “there is substantial and credible evidence to conclude you [Mr. Brady] were at least generally aware of the actions of the Patriots’ employees involved in the deflation of footballs.” [p. 9 of the ruling] To justify the suspension, Mr. Goodell invoked language in the NFL’s standard player contract giving the Commissioner the right to discipline players for “conduct reasonably judged by the Commissioner to be detrimental to the League or professional football,” [footnote on p. 10] and the League’s letter to Mr. Brady informing him of the action invoked the Commissioner’s disciplinary authority under the collective bargaining agreement.
In affirming the suspension after the arbitration hearing, Mr. Goodell added that the four-game suspension was appropriate because, “In terms of the appropriate level of discipline, the closest parallel of which I am aware is the collectively bargained discipline imposed for a first violation of the policy governing performance-enhancing drugs [four-game suspension].” [p. 18]
Both Mr. Goodell’s statements and the original letter to Mr. Brady recognize that the NFL collective bargaining agreement governs any disciplinary action such as the Brady suspension. Judge Berman goes further, noting that any arbitration under the collective bargaining agreement must meet the requirements of the Federal Arbitration Act (FAA) and applicable case law. Further, “As the proctor of the bargain, the arbitrator’s task is to effectuate the intent of the parties. His source of authority is the collective-bargaining agreement, and he must interpret and apply that agreement in accordance with the ‘industrial common law of the shop’ and the various needs and interests of the parties.” [p. 19] In other words, Mr. Goodell, in his capacity as arbitrator, had an obligation both to follow the rules of arbitration under the FAA and to apply the established norms of League practice — the “industrial common law of the shop” — in making his determinations. Judge Berman found that Mr. Goodell did neither.
As Mr. Goodell repeatedly remarked, an arbitration is not a trial, and the rules of evidence in arbitration are less stringent than in court. Nevertheless, Judge Berman points out, even in an arbitration any evidence available to one side must be available to the other, and by hiring as League counsel the same law firm that had conducted the original investigation, Mr. Goodell gave the League a substantial, and improper, informational advantage over Mr. Brady in the arbitration hearing. This was only Mr. Goodell’s most serious failure in conducting the hearing.
Judge Berman also found that in the NFL, the “law of the shop” is “to provide players with advance notice of prohibited conduct and potential discipline.” [p. 19] Nothing in any contract or policy manual that the players receive suggests that a player could be subject to suspension for, as the original investigation found Mr. Brady to have done, remaining silent after having general awareness of misconduct by club employees. By using the performance-enhancing drugs (PEDs) policy as the model for the penalty he did impose, Mr. Goodell likely made his position worse. The PEDs policy puts players on notice, in minute detail, regarding the relevant rules, procedures, and penalties concerning PEDs. If anything, the detail of the PEDs policy indicates that its sanctions apply specifically to violations under it alone, and not to whatever misconduct the Commissioner decides is somehow analogous.
The Brady decision is a victory for Mr. Brady and the Patriots, of course, but it also contributes to the broader stream of labor law, particularly as it concerns disciplinary action for workplace misconduct. Any worker, especially one working under a collective bargaining agreement, could potentially point to the decision if the circumstances are broadly analogous — that the employer sought sanctions outside the collective bargaining agreement and the “law of the shop,” or, if the worker had lost in an arbitration, management had somehow prejudiced the proceedings in violation of the FAA. Rank-and-file workers might feel that, well, Mr. Brady is a wealthy man, able to hire the best lawyers. That may be true, but a labor leader could make the same claim for any major labor organization. Union leaders and members everywhere — even those that prefer to root against the Patriots — should be applauding the Brady decision.
Sources: Brady decision at http://a.espncdn.com/pdf/2015/0903/BermanBradyRuling.pdf