This morning the United States Second Circuit Court of Appeals reinstated New England Patriots quarterback Tom Brady’s four game suspension for his involvement in “deflate gate” — deflating footballs for an NFL game.  Here is the Court’s decision.

The Court’s decision reflects the general enforceability of arbitration agreements and the enormous power of arbitrators to decide parties’ disputes.


For a brief refresher, here is how the drama began:

On January 18, 2015, the New England Patriots and the Indianapolis Colts played in the American Football Conference Championship Game at the Patriots’ home stadium in Foxborough, Massachusetts to determine which team would advance to Super Bowl XLIX.  During the second quarter, Colts linebacker D’Qwell Jackson intercepted a pass thrown by Brady and took the ball to the sideline, suspecting it might be inflated below the allowed minimum pressure of 12.5 pounds per square inch.  After confirming that the ball was underinflated, Colts personnel informed League officials, who decided to test all of the game balls at halftime.  Eleven other Patriots balls and four Colts balls were tested using two air gauges, one of which had been used before the game to ensure that the balls were inflated within the permissible range of 12.5 to 13.5 psi.  While each of the four Colts balls tested within the permissible range on at least one of the gauges, all eleven of the Patriots balls measured below 12.5 psi on both.

HR Law Insider has written here, here, and here, about what happened next in the deflate gate scandal.  In short, NFL Commissioner Roger Goodell suspended Brady for four games, but that suspension was overturned after Brady sued the NFL in federal court.  That decision has now been reversed.


In deciding against Brady, the Court of Appeals shot-down each of his arguments.  Detailing each argument in this article is impractical, but here is an example of how Brady’s conduct worked against him:

“At oral argument, the NFL Players’ Association further contended that the Commissioner was improperly punishing Brady for destroying his cell phone because he was required to institute a new disciplinary action (so that Brady could then appeal any determination that he had destroyed his cell phone). This argument fails because, as set forth in the original disciplinary letter, Brady was punished for failing to cooperate, and it is clear from the Commissioner’s decision that Brady’s cell phone destruction was part and parcel of the broader claim that he had failed to cooperate.”

The Court of Appeals decision was not without strongly worded dissents within the multi-member appellate panel.  The dissenters’ theme — sure to be adopted by Patriot’s fans — is that the NFL was unfair to Brady.  As noted by one dissenter:

“[T]he Commissioner’s murky explanation of Brady’s discipline undercuts the protections for which the NFLPA bargained on Brady’s, and others’, behalf.  It is ironic that a process designed to ensure fairness to all players has been used unfairly against one player.”


The next stop for the deflate gate saga is the United States Supreme Court.  Should the highest court in the land decide to take the case, we may well learn which justices understand the game that has virtually become a national obsession; and we may also learn if there are any Patriots fans on the bench.

For all you trivia buffs, Byron Raymond “Whizzer” White (1917 – 2002) won fame both as a football halfback and as a Supreme Court Judge.  Born and raised in Colorado, White played in the NFL for three seasons.


If you are a business or organization that does not want a judge or jury to decide your dispute, embed an arbitration provision in your contract(s).  Understand, however, arbitration agreements must be carefully drafted to be enforceable.  Contact counsel to understand the pros and cons of arbitration agreements.

Art Bourque has guided businesses and individuals for 25 years on arbitration agreements, employment law, and commercial arbitration.  Contact Mr. Bourque with any questions concerning this article.

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