Deflate This: Judge Berman Rules on DeflateGate – Lessons for the Everyday Practitioner


Deflate This: Judge Berman Rules on DeflateGate – Lessons for the Everyday Practitioner


The DeflateGate decision focuses on two legal principles:

• Due process matters – if you don’t provide a party with fair notice of the potential for penalties, you should not expect a court to enforce them
• When it comes to evidence, don’t hide the ball
On September 3, 2015, Judge Richard Berman of the Southern District of New York Federal Court issued the long-awaited ruling in the DeflateGate scandal. As everyone knows by now, unless you live under a rock, Judge Berman completely vacated the four-game suspension against Tom Brady.

Judge Berman’s Decision

• The case was decided in the context of motions to confirm and vacate the arbitration decision that upheld the initial four game suspension issued by Commissioner Goodell.
• The Court stated as a legal principle that no arbitration decision could stand if it did not meet “the requisites of fairness or due process.” The Court also stated as bases for vacation of an arbitration award the refusal to “hear evidence pertinent and material to the controversy” and where “there was evident partiality.”
• Then the Court launched into its analysis. It accepted the facts as the arbitrator found them, but still vacated the arbitration award. The Court did so on three bases: 1) inadequate notice to Tom Brady of the potential for a suspension as opposed to a fine; 2) denial of the opportunity for Brady to cross–examine one of the two lead investigators; and 3) denial of equal access to investigative files, including witness interview notes.
The forty page decision will be great reading while watching the season openers this weekend. For litigators, it’s important to note the lessons provided for conducting arbitrations and appealing from arbitration awards.

Why This Matters for Litigators

First, due process requires that parties understand the penalties that can be levied for certain conduct, something that was not present in this case. All Brady understood was that a fine could be levied, not a suspension, much less a four-game suspension. The Court stated that a “player’s right to notice is at the heart of the [Collective Bargaining Agreement], and for that matter, of our criminal and civil justice systems.” This is relevant to our everyday practices: the concept of fair notice often plays a central role in disputes, and a party’s failure to provide such notice can be fatal in any number of different ways.

Second, the other main lesson concerns the admission of evidence. Goodell, as the arbitrator, denied Brady the opportunity to cross-examine Jeff Pash, even though he had been designated as the co-lead investigator with Ted Wells, and in fact, edited the Wells Report. Additionally, Goodell denied Brady’s request to obtain notes of witness interviews that formed one of the bases of the Wells Report. The Court looked at both issues through the lenses of fairness and prejudice, and concluded that Goodell’s actions violated fundamental fairness by depriving Brady of the opportunity to mount an adequate defense. The lesson here is clear: arbitrations are about fairness, and an arbitrator may not jeopardize the fundamental fairness of a proceeding by refusing to permit the development of relevant, discoverable evidence.

What’s Next

This case undoubtedly will continue to occupy the news. A lot of the analysis will be rooted in sports talk. But for litigators, the decision provides some important reminders of fundamental principles: litigation is an adversarial process that relies on the parties’ observation of rules of fair play – in this case, proper notice and the protection of a litigant’s opportunity to maintain a robust defense. These are immutable lessons that apply to any case, whether it involves your next door neighbor or a four-time Superbowl Champion.
Now, let’s go play some football.

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Meet Mike Bosse and Dan Mitchell, litigators and football fans.