This post also appears on Constitution Daily, the blog of the National Constitution Center.
The New England Patriots professional football team opened this year’s pre-season training camp this week in Foxborough, Mass., with one lingering issue settled: their star quarterback, Tom Brady, is not going to ask the Supreme Court to give him legal permission to play in the team’s first four games of the season. He will be suspended for those games.
That was big news for the football world, but it also had real meaning for the legal world – at least that part of the legal world that focuses on the intricate web of commitments and limitations that surround professional athletes.
Had Tom Brady’s lawyers taken his case on to the Supreme Court, it would have been not only a sports celebrity sensation, but a severe test of just how the rules of pro sports are made and enforced – provided, of course, that the Justices had agreed to rule on the case. The reality is that they probably would not have. But that is only part of the legal story.
Brady had been suspended for four games next season by the National Football League’s commissioner, Roger Goodell. The infraction that Goodell found was that someone in the Patriots’ organization had under-inflated the footballs that were used in a playoff game in January 2015; Goodell found that Brady was partly to blame. Supposedly, a less-inflated football is easier to grasp, and to throw. That, the commissioner ruled, gave Brady an unfair advantage on the field.
Brady’s lawyers challenged that finding and his suspension within the internal legal machinery of the League, and lost. But they then sued, and won in a federal trial court. However, a federal appeals court ruled against Brady, upholding the commissioner.
Brady and his legal teams did have the option of asking the Supreme Court to review the case. The case, at its core, involved the interpretation of a federal labor law, and the terms of a union-management contract (a “collective bargaining agreement”) governed by that federal law.
But, after losing in the appeals court last month, Brady posted a note on his Facebook page. “It has been a challenging 18 months and I have made the difficult decision to no longer proceed with the legal process. I’m going o work hard to be the best player I can be for the New England Patriots and I look forward to having the opportunity to return to the field this fall.”
When Brady’s coach, Bill Belichick, met reporters last week as training camp opened, he said “we have finally some definition with Tom’s situation….Tom will return as the starting quarterback when he comes back….There’s definition to it now; we’ll move forward based on that definition.” His focus for now, he said, would be to try to get a backup quarterback, Jimmy Garoppolo, ready to lead the team while Brady is sidelined.
What if Brady and his legal team had kept up the court fight? Their first hurdle itself would have been a high one: persuading at least four of the Justices to agree to review his claim. In the jargon that some sports writers used in analyzing the chance for an appeal to the Justices, it would have been a “Hail Mary” attempt.
If his case has been about constitutional rights, his chances might have been fairly good: the punishment was imposed on him by the same NFL official who then acted as the arbitrator to decide what to do about the under-inflated footballs. That sounds very much like a “due process” problem. In so many different constitutional contexts, the Supreme Court has ruled repeatedly that the same person cannot act as prosecutor, judge, jury and appeals judge.
But the process that was “due” to Tom Brady as a pro football player was what the players’ union and the NFL management had worked out in contract negotiations, and what they had agreed to have happen when disputes arose over how to interpret that contract: here, sending the disputes to an arbitrator.
Two things would have immediately appeared to the Supreme Court Justices as they examined a Brady appeal: parties are bound by what they agreed to when they sign a contract, and they are bound by the dispute-settling mechanisms that they set up. In other words, they set up the industry government under which they exist in the bargained relationship.
While the regular courts do hear appeals from those labor-management governing arrangements, they do not second-guess the fairness of what was done, but only whether the contract terms had been followed. Moreover, when parties agree to arbitration of their disputes, the regular courts are usually very reluctant to second-guess the results – or even whether the arbitrator actually was fair, so long as the arbitrator acted within the contract’s terms.
Those factors would have counted strongly against Brady getting a Supreme Court hearing.
But Brady’s lawyers attempted to fit their legal claims within those normal limits of court review of labor conflict. They contended that his case did not follow the rules both sides had accepted. They argued that Commissioner Goodell (although entitled to name himself as arbitrator) had based his punishment on different reasons than those that led Goodell to find a rules violation in the first place. Brady was punished for the under-inflation violation, but based upon a comparison by Goodell of what would have happened to a player who had used illegal steroids.
They also argued that Brady was never given advance notice under the contract that he would face any punishment other than a financial penalty for a rules violation based on equipment-tampering. Drug abuse is what usually leads to suspension, they asserted.
But those arguments failed in the federal appeals, in a 2-to-1 decision that interpreted the players-NFL contract in very broad terms, especially on the commissioner’s powers, both in deciding punishment and in reviewing it as arbitrator.
Although Brady’s lawyers went to considerable lengths in trying to show that the case raised much larger issues, with wide impact on labor law, the decision of the appeals court majority wound up looking very much like this was a one-of-a-kind case, with its own special facts, and in which Brady got just what his union and management had bargained for..
Brady’s only chance in the Supreme Court would have been to make this dispute into a major precedent-setting controversy. Like the difficulty in getting the Justices even to take up the case in the first place, that, too, might have appeared to be a “Hail Mary” strategy.