Category Archives: Arbitration


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.


In a long awaited ruling,  federal judge  Richard M. Berman overturned the NFL’s four game suspension of New England Patriots quarterback Tom Brady in the Deflategate case.

The judge’s decision provides employers with key takeaways when dealing with employee misconduct.  Before discussing those takeaways, here is the full decision.


The judge’s decision is lengthy, but can be boiled down to the following rulings:

  • “The Court finds that Brady had no notice that he could receive a four-game suspension for general awareness of ball deflation by others or participation in any scheme to deflate footballs, and non-cooperation with the ensuing Investigation.
  • Brady also had no notice that his discipline would be the equivalent of the discipline imposed upon a player who used performance enhancing drugs.
  • In further support of his claim that there was no notice of his discipline, Brady points to the testimony of Mr. Wells, who acknowledged the following at the arbitration hearing:  “I want to be clear– I did not tell Mr. Brady at any time that he would be subject to punishment for not giving– not turning over the documents [emails and texts]. I did not say anything like that.”
  • The Court concludes that, as a matter of law, no NFL policy or precedent notifies players that they may be disciplined (much less suspended) for general awareness of misconduct by others. And, it does not appear that the NFL has ever, prior to this case, sought to punish players for such an alleged violation.”

Judge Berman’s decision further admonishes the NFL for its failure to provide Brady with the ability to confront witnesses during the hearing and obtain documents in discovery:

  • First, the judge agreed with Brady’s contention that:  “Commissioner Goodell’s denial of the testimony of Jeff Pash at the arbitral hearing was fundamentally unfair because (1) the NFL publically declared that NFL Executive Vice President and General Counsel Jeff Pash was the co-lead investigator on the Wells-Pash Investigation, and (2) Pash was allowed to review a draft of the Wells Report and to provide Paul, Weiss with written comments or edits prior to the Report’s release the public.
  • Next, the judge found “that Commissioner Goodell’s denial of the Players Association’s motion to produce the Paul, Weiss investigative files, including notes of witness interviews, for Brady’s use at the arbitral hearing was fundamentally unfair and in violation of 9 U.S.C. § 10(a)(3) and that Brady was prejudiced as a result. The interview notes were, at the very least, the basis for the Wells Report, and Brady was prejudiced by his lack of access to them. Brady was denied the opportunity to examine and challenge materials that may have led to his suspension and which likely facilitated Paul, Weiss attorneys’ cross-examination of him. Because the investigative files included the unedited accounts of the witness interviews, the Wells testimony at the arbitral hearing failed to put Brady “in the same position as the document[ s] would [have].”

In sum, the NFL’s two fatal errors were (1) failing to warn players that deflating footballs or similar conduct could result in a suspension and (2) unfairly denying Brady the right to obtain investigatory documents and to confront a witness to the investigation which led to his suspension.


Here are four takeaways for employers from the judge’s decision:

First, employers should have extremely broad language in employee handbooks that encompass a wide range of misconduct that can lead to discipline up to and including discharge.  While “deflating footballs” is not likely to be included as a dischargeable offense in your company’s employee handbook, management should annually review the handbook to ensure it is appropriately broad and complies with the law (some handbooks go too far and state policies which, if followed, are illegal).

Second, if you elect to engage in arbitration to resolve disputes — I am generally not a fan of arbitration — then the arbitration process must be fair to all parties. Judges rarely overturn arbitration decisions, but when they do,  procedural unfairness is a common basis for the decision.

Third, I believe the judge could have found for the NFL as easily as he found against it.  I am not suggesting Judge Berman was improperly biased.  However, aspects of his ruling are troubling, including the notion that a player should not know he may be suspended for (a) engaging in a conspiracy to cheat and then (b) covering up that conspiracy by refusing to cooperate with an investigation.

The lesson:  any time a company or organization — in this case one of the largest and most profitable organizations on earth — places its fate in the hands of a judge or other third party, control is lost; and the resulting decision often depends more on who is deciding the case than the actual facts of the case (e.g. the OJ Simpson case).

Fourth, choose your legal counsel wisely.  It is reported that the NFL paid “neutral” investigator Ted Wells over a million dollars for a report which had more holes in it than Swiss cheese. The NFL, presumably advised by other high paid lawyers, made a number of other tactical mistakes.

If you cannot avoid a dispute, select legal counsel based on proven experience AND a targeted and thoughtful interview and selection process that is not affected by the size of your lawyer’s cufflinks, firm letterhead, or ego.


The Super Bowl champion Patriots are back in business: the NFL season starts next week and quarterback Tom Brady is back at the controls.