By Eldon Ham--
(CBS) Commissioner Roger Goodell and the NFL should lose the Deflategate court case in which Tom Brady is appealing his four-game suspension, because Goodell has been arbitrary, unreasonable, unfair and foolishly inconsistent.
For starters, Goodell infamously suspended former Ravens running back Ray Rice two games after Rice punched a defenseless a woman in the face and knocked her cold, all on video tape for the world to see. Then he nailed Brady for four games, twice the Rice penalty, after a vague equipment violation that even the NFL's own Wells Report soft sells, saying only that Brady may have been "generally aware" of the wrongdoing. There was no smoking gun, no disturbing videos, no domestic abuse, no aberrant conduct, no objective proof and no precedent for such a harsh equipment penalty.
In the Rice case, Goodell blew the penalty and then tried to re-sentence Rice after he was hit by a big dose of public scorn. The result: The NFL improperly penalized Rice twice. With Brady, the NFL blew the penalty and then, after the hearing, tried to make the case seem worse by inventing a trumped-up cell phone controversy to justify Goodell's over-the-top suspension. No player had ever before been suspended for even a proven equipment violation, let alone the rumor of one. Goodell was arbitrary, unfair and even disingenuous, and the NFL needs to lose this one, too.
Yes, Goodell had the power to hear Brady's appeal under NFL Constitution, Article VIII, § 8.13(A) -- but even so, he had no right to abuse that power. Yet Goodell violated the "private sector due process" rules against arbitrary and unreasonable conduct, prejudged the Brady case, played word games with the preponderance of evidence and then trumped up a new charge to justify the overblown penalty.
The law imposes a standard of reasonableness, as does the NFL collective bargaining agreement and standard player contract. Goodell effectively recused himself by hiding behind the investigation of hired gun Ted Wells, chair of the litigation department at the prestigious Paul, Weiss, Rifkind, Wharton & Garrison LLP. But Wells didn't just investigate the case; he drew his own conclusions in a 243-page epic report, even ruling it is "more probable than not" that Patriots employees were culpable and that Brady was "at least generally aware" of it.
But why would a prestigious litigator like Wells say "more probable than not" instead of just saying "probable?" Think about the meaning: If something is more blue than not blue, it still doesn't mean it's really blue, right? One could say that gray is more blue than black is, but it still isn't blue. If something is actually blue, it's called blue.
The same goes with "more probable than not." The legal standard here is the preponderance of evidence, meaning probable. But "more probable than not probable" still really isn't probable, is it? And that little word ruse doesn't even apply to Brady. it merely says some Patriots employees not named Brady may have done something wrong. The only Brady culpability is that Wells thinks he was "at least generally aware" of these other actions that may or may not have happened.
By proceeding the way he did, Goodell violated almost every tenet of private sector fairness and due process. Making it worse, Goodell clearly pre-judged the appeal, then he violated the standard of reasonableness when he finally ruled.
In effect, Goodell denied Brady a genuine hearing. Wells wasn't a direct witness, nor did he have personal knowledge of any of this. Yet he was the investigator, finder of fact, judge and jury, rendering a vague conclusion for the commissioner to rubber stamp.
Moreover, Goodell himself had already pre-judged the Brady appeal: First he threw the Wells book at Brady, then decided it all over again the exact same way, ruling in favor of himself. Even worse, Goodell took Wells' "generally aware" language and then embellished it, as confessed by the public NFL statement: "Brady was aware of, and took steps to support the actions of other team employees to deflate game footballs …"
What steps? Even Wells couldn't say that Brady expressly took any such steps. Goodell just slipped this extra conclusion in as fact. We know this matters to the presiding federal judge, Hon. Richard Berman, because he devoted several minutes in open court asking where the direct evidence was.
Brady should win because the NFL really needs to lose. Judge Berman understands the not-so-veiled nuance of "more probable than not," and he certainly can recognize word mincing when he reads that Brady may have "at least been generally aware" of whatever it was that did or didn't happen. He also knows a tempest in a teapot when he sees one.
There's no shortage of aberrant conduct in pro sports these days, but a trumped-up air pressure scandal isn't much more than a lot of old-fashioned hot air and word games. When Goodell made a federal case out of it, the NFL may have overplayed its hand.
Judge Berman seems poised to rule — and it may not be pretty.
Eldon Ham is the WSCR sports legal analyst, a professor of Sports, Law & Society at IIT/Chicago-Kent College of Law and the author of numerous sports books, including All the Babe's Men, the 2014 bronze medal winner in the national IPPY book awards for sports. Click here to read his previous work for 670thescore.com.
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