Legal Genius Emily Compagno weighs in on NFL Federal Court Fest 2015

[Courtesy of Peter Kokinakis (@Blunt_Doctor_RX), author for The Manalysts (@TheManalysts and]:

Being a Patriots fan over the last decade has, quite honestly, been insane. It’s a roller coaster, and has been almost daily since the Super Bowl win against the Eagles. The team is hated in a way that I find amazing – mere mention of my Patriots fandom often sends people into a rage. The team and players are called liars, cheaters, problem children, habitual troublemakers – and various other phrases that get longer as I go. It usually comes down to this comment:


This is the tried and true insult. Despite the fact that sideline taping was legal til a mere 6 months before this incident, the entire world has decided that 3 Super Bowl runs hinged on something that Jimmy Johnson has readily admitted to doing. Not only that – the rule wasn’t even changed to make sideline taping illegal. It was simply changed to relocate those taping. You’ve heard of zoom, right? Case closed, let’s move on.

@TheManalysts: Are you serious about the Jimmy Johnson Taping thing?
@TheManalysts: All the time, that’s why we fired you.@Blunt_Doctor_RX: IF THEY COME FOR OUR 4 THEY’RE COMING FOR YOUR FIVE
@TheManalysts: …good point. But you’re still fired.

I once had a Raiders fan tell me about how he was SURE that I KNEW that the NFL colluded with each other to allow the Patriots to beat the Raiders in the snow game in 2002. First off – I am honored that this guy thinks that I’m in such a position of power that I know the secret inner workings of the most powerful sports league in America. He’s right, of course – I do know everything – but how he knew that is beyond me. How the NFL managed to decide beforehand to make it snow, make Charles Woodson hit Tom in the head with his fist, make Tom throw an incomplete pass, and then make the referee overturn the initial call of a fumble – well, I can’t say I don’t know. Because I do (haven’t you been reading?), but I can’t tell you. It’s a secret.

If you read that last paragraph and finished it with a resounding, “What the hell?” then you are right about where the rest of us are right now. With Good Ol’ Rog announcing today that Tom Brady’s four game suspension would be upheld, we all knew the immediate message: It’s On to Court. But despite the literally one million armchair lawyers out there on Twitter, I decided I wasn’t really getting enough answers. A lot of people are talking about this situation – but the answers are vague…until now.

Emily Compagno (@Compagn0) is a Legal/Sports Business Analyst who was gracious enough to take time out of her seriously busy schedule to talk with me about this issue, and the very real legal battles ahead. Brace yourself kids, because I’m actually asking serious questions to a serious person. Questions in bold.

BD – Does the NFL filing in new york (filed today to get courts to uphold suspension) first guarantee that NYC will be the jurisdiction? If the NFLPA files somewhere else, say minnesota, are the cases likely to be combined?
EC – It is not a “guarantee” the forum will remain in the Southern District of NY, but it is a guarantee should the NFLPA file elsewhere (likely Minnesota or Massachusetts), the courts would then make the determination which of the two is the most appropriate venue.  This determination would take into account both sides’ arguments for which jurisdiction is proper.  The NFL has the advantage given they filed in NY first, and a strong argument in the headquarters being located there; however, there is a long history of NFL/NFLPA disputes being resolved in Minnesota in front of Judge David Doty, and the NFLPA will argue the NFL filed merely for tactical purposes in a venue without a union-friendly tenor.  And yes; multiple disputes arising out of the same contractual issue are consolidated in the same court, in front of the same judge.
BD – Will this be resolved before the season – either by upholding/overturning the suspension? Or will this move on to next offseason by some form of legal action by the NFLPA to delay the case?
EC – The pending petition for an injunction that would allow Tom Brady to play pending the appeal should be resolved by the start of the season, because that is the subject of the injunction.  The actual federal suit filed by the NFLPA will take much longer – especially given the expected venue dispute as a prologue.
BD – What will the court case actually entail? I saw you mention on twitter that the judge would not necessarily be ruling on the deflate gate evidence, but on the procedures – could you explain?
EC – The federal judge would consider the lawfulness of the process the NFL used, not the actual dispute.  Think of this as the NFLPA imploring in federal court that an employer violated the collective bargaining agreement (CBA) in its discipline of an employee.  It is not an appeal of the decision, but rather an argument that an employer incorrectly applied an organization’s agreed-upon contract it has with its employees via the employee union.  The whole point of this aspect of the CBA is that both parties have agreed upon a mechanism by which employees will be disciplined, and includes the appeal process. The federal court exists in this regard to ensure the process is upheld and adhered to lawfully.  Specifically, the NFLPA will argue that although Goodell is technically (under the CBA) authorized to serve as (or designate) the arbitrator in discipline appeals, it is not lawful if the selection itself violates federal labor laws.  Meaning under custom and practice, the arbitrator has a duty to adhere to the principles of fairness and consistency- and the NFLPA will argue Goodell failed to meet his duty here by being neither fair nor consistent.  Reminder, there have been a few cases where a federal judge determined an NFL commissioner was not the appropriate arbitrator regardless of the technical legality, because of having an inherent interest in the proceeding outcome. If the NFLPA successfully argues Goodell did not have the necessary neutrality to act as arbitrator here (i.e. that he was biased and this was evident in his severe decision), the suspension could be overturned.  Additionally, the NFLPA can and likely will parse the process the NFL used as having violating the CBA: the standard Goodell used was not expressly listed in the CBA, Tom Brady was not obligated to turn over his cell phone, Troy Vincent was an improper delegate of Goodell, etc.
BD – Was Tom Brady right or wrong, legally, not to turn over his personal cell phone? Does the CBA have language about personal cell phone use to your knowledge?
EC – It is my understanding the CBA does not contain express language that compels players to surrender personal cell phones, text messages, or emails.  That means this would have been a request by the NFL for personal items, and would typically require written consent by the NFLPA.  However, according to the NFL, the cell phone was requested, and of course cooperation does not limit what an individual can voluntarily produce.  Goodell cited the timing of the destruction as evidence of purposeful “destruction of relevant evidence,” which went beyond mere failure to cooperate.  So the issue here (to the NFL) was not that Brady did not turn over his cell phone, but that after it was requested he deliberately destroyed it.
BD – Does this set a bad precedent for the NFL, using the federal courts to solve a suspension related issue for one player?
EC – This is not a new precedent, and conceptually this is not a misuse of our court system.  The court system exists for all employers/employees to seek relief in situations where a CBA has been (allegedly) violated or there has been an (alleged) departure of agreed-upon procedure.  Think of it (here) as a checks and balances system for employer/employee bargaining agreement disputes; the vast majority of discipline issues are handled internally, by the process the employer and the union has mutually agreed upon.  This happens with regularity, for example, in cases involving federal government unions, when federal employees contest employer (the United States Government) actions under their various CBAs. For those cases similar to the NFLPA/Brady’s position here, where the employee believes the employer violated the contract and was adversely affected [i.e. loss of income or job], then that is exactly the correct use of the federal court system.  The NFL here acted preemptively to seek a declaratory judgment; though more rare than an employee seeking relief from the federal courts, it is no less important and is 100% their right to do so.  And reminder, there have been commissioner-related federal NFL cases in the past.
BD – Assuming the suspension were dropped, would Tom Brady have a potential defamation of character case?
EC – Sure, but it would be incredibly weak for two reasons: 1. Were he to bring a defamation civil suit against the NFL/Goodell in his Commissioner capacity, he would have to prove the defamatory published statements were injurious, and 2. as a public figure he would have to prove the NFL/Commissioner acted with “actual malice” in their defamation of his character.  It would likely be difficult for Brady to prove a substantial financial injury – I am not aware of any endorsement contracts that were pulled, etc., and if anything if he successfully appealed this his fan status would likely catapult even higher – and it would be incredibly difficult to prove the NFL/Commissioner acted with “actual malice” in their allegations and decision regarding Brady’s involvement and evidence destruction.
BD – Does any of this spell doom or a negative future outcome for Roger Goodell, especially if the NFL loses in federal court?
EC – Not necessarily.  As discussed above, he would not be the first NFL Commissioner to be told by a federal judge that he was not neutral in a decision he made as an arbitrator.  Moreover, Goodell has already weathered a few storms during his tenure that many would argue are more dramatic than this, and I do not see him resigning should the NFL lose in federal court.  It’s also important to note here that if this decision gets overturned, it might be on the basis of his bias – and part of the allegations of bias include the assertion he was being pressured by other teams. But his removal would come at the behest of the owners.  So if it were true that he was being pressured by other teams to punish the Patriots and Tom Brady more severely than he would otherwise, and his decision was subsequently vacated as a result of his succumbing to that pressure, then it would be unlikely those same teams would call for his removal when he was working too closely with them to begin with.
BD – If the suspension is overturned, could the suspension and appeals process see another overhaul? Or if the suspension is upheld, will this process be locked into place?
EC – If the federal judge upholds the decision (technically, upholding Goodell’s serving as arbitrator and his decision-making process), the NFLPA can always appeal to the Court of Appeals for the 2nd Circuit (the second level of federal court for NY).  If the suspension is overturned, the Judge would likely remand back to the NFL to consider the decision again with a new arbitrator.

BD – Is there a legal reason the Patriots and Tom were punished worse here, than say the Vikings or Panthers? Both teams have been caught tampering with footballs and were given warnings to stop.

EC – An employer (and arbitrator) has the duty to levy punishments in accordance with the CBA, which means fairly among all employees and in a gradating manner (if applicable in the CBA). Think of it as vertical and horizontal lines in front of the employer, and a linear line behind the employer.  If five employees commit the same infraction, the employer should punish them all the same, right (horizontal)? But what if one of them committed the same infraction before? And another one committed it twice before? Then the employer would look to precedence (linear line going back) as well as the applicable gradating system of punishment (vertical).  Then it might look something like this: the 3 employees whose first time it was all receive a written warning. The one who did it once before gets suspended for one day. And the one who committed the infraction twice before gets suspended for five days – because the CBA indicates that those types of infractions should be disciplined in succession by written warning, then suspensions of varying lengths. But the reality is every employee is different, and every situation is different; the employer strives for equal application given the framework I have just set out, but other factors — both mitigating and enhancing — necessarily become part of the assessment process. What if one employee destroyed evidence? What if one exhibited remorse and confessed?  I go into this detail to illustrate the varying factors assessing officials must take into account in union-governed situations involving discipline, and why it’s not a cut and dried situation (and hence the need for an appeals process).  Reminder, the NFL levied a $50,000 fine against Brett Favre for not cooperating with an investigation; but/and argued here that Brady’s destruction of his cell phone rose to a level that far exceeded a failure to cooperate (and thus warranted, in part, the four-game suspension).
BD – Wow. This is great information. Thanks so much for answering my questions today, Emily.
EC – It’s my pleasure! Thanks for allowing me to participate.


You can find me on Twitter @Blunt_Doctor_RX, and find Emily on Twitter @Compagn0.