Ben Levin is Climenko Fellow and Lecturer on Law at Harvard Law School.
That sound you hear isn’t the air being let out of footballs. It’s the collective groans of New England Patriots fans. On Monday, a divided panel of the U.S. Court of Appeals for the Second Circuit reinstated quarterback Tom Brady’s four-game suspension for his involvement in deflating footballs during the 2015 NFL playoffs. The court decided that NFL Commissioner Roger Goodell was owed deference and that suspending Brady fell within his authority under the league’s collective bargaining agreement.
As a football fan and a Boston-area resident, I am preparing for breathless coverage on the local news, indignant conspiracy theories on local radio, and grand statements about Brady’s legacy and the sanctity of the game on ESPN.
But Monday’s court decision is about much more than Tom Brady or the NFL. The decision should worry anyone concerned about workers’ rights and employer power because of what it says about an employer’s unchecked discretion to discipline workers.
A bit of background: in 2015, allegations surfaced that Patriots staff had systematically deflated footballs at Brady’s request (granting the Patriots a competitive advantage). The NFL commissioned an independent investigation, which concluded that Brady knew of and may have been involved in the deflating. Goodell suspended Brady for four games, and Brady requested arbitration.
Under the peculiar terms of the NFL’s CBA, Goodell served as arbitrator. That is, he heard the appeal and decided whether he had been wrong. Not surprisingly, he upheld the suspension.
A federal district court judge vacated the decision, concluding that Brady hadn’t received notice that he might be suspended (the CBA provision at issue only mentioned fines) and that Goodell had denied him “fundamental fairness” in the proceedings.
On Monday, the Court of Appeals reversed the decision below, emphasizing the deference that was owed to Goodell and that the court ought to uphold his decision as long as it arguably “dr[ew] its essence from the collective bargaining agreement.” Put simply, the CBA represented a compromise between players and management; it wasn’t the court’s place to interfere or to judge whether the players had struck a bad deal by giving Goodell so much power.
It’s tempting to shrug and view this as another case of internal power squabbles in pro sports – do the millionaires win, or do the billionaires? But the legal principles underpinning the court’s decision are broadly applicable and broadly troubling. Instead of treating the Brady decision as a piece of celebrity gossip or grounds for partisan sports bickering (loathed by Pats fans, loved by others), we should consider the authority that Goodell wields and the way that it reflects the broader legal framework of employment.
The ability of employers to act unilaterally in disciplining workers – and the inability or unwillingness of courts to check this power – should be cause for concern. Since the New Deal, the laws of the workplace have been premised on the realization that employers and employees have unequal bargaining power. While much employment is still “at will” (i.e., a boss can fire a worker for no reason), rights to unionize and to prevent against wrongful discharge have eaten away at the unbridled authority of employers. It’s inevitable that bosses have power over their workers. But the law recognizes that this power cannot be unlimited.
Monday’s decision reflects a troubling normalization of the boss (in this case Goodell, the owners’ representative) as ‘judge, jury, and executioner.” Arbitration clauses have recently received significant attention: they are ubiquitous, and they often deprive consumers and employees of important rights by shifting power to private arbitrators and withholding procedural protections. In the Brady case, the dangers of arbitration are magnified because of Goodell’s authority at each stage in the process.
As Andy Strom notes, arbitration can have its benefits for workers and unions, who often bargain for them. Assuming that arbitration serves its desired function of reducing costs and providing faster relief, the decision might be hailed as a victory for workers (as Strom suggests) rather than a defeat. But how the arbitration clause operated here and empowered Goodell should be cause for concern.
Certainly, the court was right that an unwise bargain doesn’t necessarily make it unenforceable. (And there’s good reason to think that the NFLPA dropped the ball in agreeing to certain aspects of the NFL’s disciplinary policies.)
Nevertheless, the court’s reading of the CBA and the facts of the case appear to allow for almost limitless deference to an employer when there’s an arbitration clause. Goodell’s justification for the suspension changed over time, and he consistently denied Brady and the NFLPA procedural rights and balked at the suggestion that he might have a conflict of interests.
While Brady and the Patriots might not be the most sympathetic victims, and an NFL superstar missing a few games is hardly a tragedy, we should all be concerned about a legal system that allows for this kind of exercise of unilateral power. As Judge Katzmann put it in his dissent, Goodell was “doling out his own brand of industrial justice.” Goodell’s unchecked decisionmaking may be bad news for NFL players, but the court’s deference to employer-run arbitration is bad news for workers everywhere.