BRADY – THE SEQUEL’S SEQUEL

RothLawAppeals, News

Last year, we explained why Tom Brady’s suspension was overturned, even though it had been imposed in arbitration proceedings.  The trial judge had many reasons for reaching his conclusion.  Commissioner Goodell had acted as both judge and prosecutor, imposing the sanction as commissioner and upholding it as arbitrator; he had denied the defense access to some evidence; the law firm that provided him with an independent report operated under such a conflict that its independence was questionable.

The Court of Appeals reversed the trial court, effectively reinstating the Patriot quarterback’s suspension.  It had only one reason to do so, and that is the reason why we have consistently advocated avoiding arbitration in business to business contracts: in practice, they are not appealable.  Period.  The arbitrator’s word, even when it’s Goodell’s, stands all but supreme.

The Court of Appeals had half a dozen ways to say the same thing.  It said that the Commissioner had “broad discretion”; that courts are not just “highly deferential” to arbitral decisions but that the standard is “the most deferential” in the law; that is was not allowed to “second guess” the arbitrator; that it may not even disturb a clear error of law so long as the error was made in good faith.  Under those standards, even the trial court’s findings, however disturbing to many, did not make the case so exceptional as to overturn a decision made in arbitration.

One of the three judges dissented, so the Player’s Union (which is acting on Brady’s behalf) could be tempted to ask the Supremes to take the case.  That may be futile, however.  The Supreme Court has upheld and tightened the deference owed arbitration at every turn in recent memory.