Tom Brady is not out of the Deflategate woods, yet. In fact, he may be headed through the woods and on his way back to a four-game suspension.
Judge Richard S. Berman exceeded his authority in overruling the suspension NFL Commissioner Roger Goodell set forth against the Patriots quarterback, according to Daniel Mahoney, a Massachusetts-based labor lawyer, who wrote in the Boston Herald. The case is headed back for appeals court on Thursday.
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"The sole job for the court (Judge Berman in the first instance in the Deflategate case) is to determine if Roger Goodell exceeded the authority granted to him by the agreement," Mahoney wrote. "Goodell did not."
The lawyer went on to highlight some of the errors Berman made:
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"Berman focused on a statute called the Federal Arbitration Act. It's the wrong statute! The arbitration act governs primarily commercial disputes that go to arbitration (disputes between companies), not management-union collective bargaining disputes. The Labor Management Relations Act, an entirely different statute, should govern.
"Berman criticized Goodell's failure to follow the rules of 'due process.' However, there is no obligation to apply the principles of due process in a labor arbitration involving private parties (that is, where the government is not a party).
"Berman's inquiry examined how other arbitrators in other NFL labor disputes previously analyzed and imposed discipline, and the judge concluded that Goodell failed to follow the so-called 'law of the shop' established by those other arbitrators. Wrong again. An arbitrator is not obligated to follow earlier arbitration precedent."
Michael McCann, a legal expert for Sports Illustrated and a law profession at the University of New Hampshire contradicts Mahoney's report, saying he favors Brady in winning the appeal, according to NESN.com.
"McCann said he understands where Mahoney is coming from," NESN.com reported. "But McCann also said the Federal Arbitration Act, which was cited by the NFL Players Association, has been used in other player disputes, and that sports cases are not always tried and litigated in a way that's consistent with other labor disputes.
"It's like any appeal. The issues are debatable. It's not clear-cut," McCann said. "It really depends on how you want to interpret the law. I think, personally, Judge Berman's decision will likely stand review. But I can understand why other minds might disagree. And his points have some weight. But I would counter that some of his points are rebuked by Tom Brady's attorneys during the brief that will be reviewed (Thursday).
"My instinct is that Brady's in good shape going into (Thursday's hearing), but with a Federal Appeals Court, you never know what's going to happen."
Mahoney added he saw a way out for Brady if his lawyers point out that Roger Goodell was not a neutral arbitrator in Brady's case and that fact should give the appeals court a broader role in interpreting the facts of the case -- meaning that it could side with Brady.
NESN.com added that a decision on the appeal could take months -- and still might not be the end of it.
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