What's Next for Tom Brady & Deflategate? Court!

Media outlets around the country are buzzing about the most recent decision in the “deflategate” saga, and I thought it would be helpful to give a quick description of what is actually happening on the legal side, and to compile the relevant documents in one place.


Originally, the NFL hired Ted Wells, a highly-accomplished New York white-collar lawyer, to investigate the allegations that the New England Patriots intentionally deflated footballs. This type of internal investigation is great for white-collar firms, as it requires a lot of manpower, and ultimately has an end: a report. On May 6, 2015, Mr. Wells produced a report titled “Investigative Report Concerning Footballs Used During the AFC Championship Game on January 18, 2015”…since that’s such a mouthful, I’ll go along with everyone else and call it “The Wells Report.” It concluded that it “is our view that it is more probable than not that Tom Brady was at least generally aware of the inappropriate activities of [the ‘deflators’] involving the release of air from Patriots game balls.”  

The Patriots were fined $1 million and were forced to forfeit a 2016 first-round draft pick, and a 2017 fourth-round pick. The Patriots organization did not appeal that decision. In addition to the team penalty, Tom Brady was suspended from the first four games of the coming season. On May 14, the NFL Players Association (NFLPA) appealed Brady’s penalty by sending this letter to the NFL.

The appeal was heard by the Commissioner of the NFL himself, Roger Goodell. On June 23, 2015, Goodell heard 10 hours of testimony, and the appeal was concluded. On July 28, 2015, Goodell upheld the four-game suspension, finding that Tom Brady had asked an assistant to destroy his old cell phone.

Prior to publicly issuing the July 28, 2015 decision, the NFL preemptively filed a federal court action seeking to confirm Goodell’s decision. I couldn’t find it elsewhere, so here is the July 28 federal court action filed by the NFL.

What’s Next?

So the NFL preemptively filed a suit to confirm the arbitration decision. The NFLPA has already made clear that it will appeal the decision.

A main purpose of arbitration clauses within Collective Bargaining Agreements ("CBA") is to avoid going to court. Basically, the parties agree that specific disputes will be resolved through arbitration, and as long as all the rules are followed, a court will not interfere. While federal courts don’t like to get involved, they can confirm an arbitration decision, which adds a layer of credibility and enforceability to an arbitrator’s decision. That’s what the NFL is trying to do.

The NFLPA will, at the very least, challenge the NFL’s confirmation action. In addition, the NFLPA could, and probably will, file a separate federal action, in a different court (I would suggest Massachusetts!). That action could ask a court to vacate the arbitration decision, alleging due process violations based on the following grounds:

  • The NFL had no policy that applied to players;
  • The NFL provided no notice of any such policy or potential discipline to players;
  • The NFL resorted to a nebulous standard of "general awareness" to predicate a legally unjustified punishment;
  • The NFL had no procedures in place until two days ago to test air pressure in footballs; and
  • The NFL violated the plain meaning of the collective bargaining agreement.

If a Court agrees with the NFLPA, and finds that the NFL didn't follow the CBA or its own rules, it could vacate the decision which would effectively reverse the four game suspension. 

The next steps will be for the NFLPA to answer the NFL’s complaint, and then either file a separate action, or counterclaim asking the Court to vacate the decision. I’ll try to update with links if anything happens!


[UPDATE: The NFLPA filed a Petition to Vacate in Minnesota - here's the filing.]