Brady's lawsuit is stronger if goddell stays as presider

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To amplify the argument that Goodell should not be the arbitrator, DePaso revealed that Brady intends to call Goodell as a witness. Among the reasons Goodell could be called as a witness is the NFLPA’s contention that Goodell had no legal right under the collective bargaining agreement to delegate player punishments to Vincent. Goodell, it would seem, cannot logically be the party who will decide on an appeal and a witness in that same appeal. It remains to be seen whether Goodell recuses himself or preside over a hearing in which he might be called to testify.

For now, it appears that Goodell will remain the arbitrator, which may not be the worst development for Brady. They would never admit it, but Brady’s legal team, led by famed sports litigator Jeffrey Kessler, probably smiled when hearing Goodell’s decision to serve as arbitrator. As explained below, Goodell selecting himself should help Brady pursue a remedy in court in the event his NFL appeal fails.

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To be clear, Goodell is generally authorized to select himself as the arbitrator in discipline appeals. The National Football League Players’ Association, of which Brady is a member, has agreed that Goodell or a designee of his choosing may serve as the arbitrator for discipline appeals by players. This process is spelled out in Article 46 of the collective bargaining agreement.

NFL

To be equally clear, the NFLPA has and will continue to argue that the union never agreed to allow Goodell to select an arbitrator if that selection violates federal labor law. The NFLPA successfully made this argument in Adrian Peterson’s recent lawsuit. Among other points, the lawsuit concerned the decision-making of former NFL attorney Harold Henderson whom Goodell had designated as the arbitrator for Peterson’s appeal. The NFLPA stressed that under custom and practice (also known as “law of shop”), arbitrators must adhere to principles of fairness and consistency. Henderson, according to the NFLPA, incorrectly applied a new and tougher domestic violence policy to conduct committed by Peterson while an older policy was in place. U.S. District Judge David Doty held in favor the NFLPA, bluntly reasoning that, “Henderson simply disregarded the law of the shop and in doing so failed to meet his duty under the CBA.” The NFL has appealed Judge Doty’s ruling to the U.S. Court of Appeals for the Eighth Circuit, but for at least the time being it highlights that Goodell must exhibit fairness and consistency in hearing Brady’s appeal.

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If Goodell sustains the four-game suspension or only reduces it, Brady and the NFLPA could argue (as explained fully on SI.com) that a suspension of any length is clearly excessive given the murky evidence and lack of precedent. Brady and the NFLPA would also contend that Goodell is inherently biased in this dispute. As the Patriots argued in its “The Wells Report in Context” memo, the NFL’s practices and procedures for testing air pressure, colleting scientific evidence and conducting witness interviews—things that directly reflect the job performance of Goodell—are implicated in the Deflategate scandal. For these reasons, Brady and the NFLPA would assert, Goodell should be disqualified from hearing Brady’s appeal.
Goodell should have picked Paul Tagliabue instead

Goodell could have mitigated this controversy and likely strengthened the NFL’s legal position simply by designating someone who would have been perceived as relatively neutral and clearly capable.

I would have selected the aforementioned Tagliabue, assuming he was available and willing. The 74-year-old Tagliabue, who served as NFL commissioner from 1989 to 2006 and now practices law at Covington and Burling in Washington D.C., has already shown a track record for fairness. In December 2012, Tagliabue, serving as an arbitrator, overturned the NFL’s suspension of Jonathan Vilma in the Bountygate scandal.

Yet Tagliabue would likely understand Goodell’s reasoning having been in the same shoes as NFL commissioner. Plus, unlike Goodell, Tagliabue is an attorney (and a highly respected one at that) and his legal training would likely help him understand the core legal issue at play in the Deflategate controversy. It stands to reason that a federal court would accord an arbitration decision authored by Tagliabue with more weight than it would one authored by Goodell. And that is among the reasons why Brady’s legal team is probably feeling good right now.

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