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Tom Brady Sacked By The Second Circuit

Tom Brady learned that overcoming a 21 point deficit in the 4th quarter is easier than overcoming the decision of an arbitrator. The fight is finally over with the full United States Court of Appeals for the Second Circuit refusing to reconsider its decision reinstated Tom Brady's four game ban for his role in deflating football during the AFC Championship game. 

The most important thing to understand about the Second Circuit's decision was that it did not decide whether or not Tom Brady engaged in a scheme to deflate footballs. This was a case about the power of an arbitrator, not the Ideal Gas Law. 

The whole point of arbitration is to avoid lengthy and expensive litigation in court. That is one of the main reasons that courts are extremely reluctant to overturn the decision of an arbitrator. There is no reason to go to arbitration if you can just get a do-over in court if you lose. That is why the review of a decision by an arbitrator is supposed to be limited to whether the arbitrator was acting within his authority. 

Here, the Second Circuit basically ruled that even if Goodell got it wrong, even if the procedure stunk, even if Goodell made incorrect evidence rulings, he was acting within the scope of his authority and, therefore, the suspension should stand.

That said, the Second Circuit did review some of the evidence that it thought supported Goodell's decision. The court noted that it was unlikely McNally and Jastremski would deflate balls without Brady's knowledge and approval; McNally got Brady autographed memorabilia right before the AFC Championship Game; there were texts between McNally and Jastremski discussing Brady's preference for deflated balls; McNally called himself "the deflator"; and Jastremski agreed to provide McNally with a "needle" in exchange for "cash," "new kick," and the Brady autographed memorabilia.

The Second Circuit was also bothered by Brady's destruction of his cellphone and concluded that it was fair for Goodell to consider the destruction evidence that the phone would have contained incriminating evidence. According to the Second Circuit, "any reasonable litigant would understand that the destruction of evidence, revealed just days before the start of arbitration proceedings, would be an important issue." Under the CBA, Brady's destruction of his cellphone was grounds alone for his suspension.

In the end, Goodell may have gotten it right and he may have gotten it wrong. He may have given too much consideration of a specific fact, and too little consideration of another one. But this does not matter. Goodell, even if he was wrong on the merits, was entitled to be wrong on the merits. The court is not there to second-guess the arbitrator. If the union thinks Goodell has too much power, if they think the arbitration procedure stinks, their remedy is to go to the bargaining table, not the courtroom.

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Kimberly Summers was awarded Top Women Attorneys, Avvo Client’s Choice 2012, Super Lawyers Rising Stars 2013-15, and NACDA Top 10 2015. Douglas Schneider was awarded Super Lawyers Rising Stars 2013 - 2015.