The Supreme Court fashioned that legal rule because it found that labor arbitrators, skilled in the nuances of labor relations, would be uniquely situated to better understand the give-and-take between labor and management.Ī collective bargaining agreement is, after all, an unusual creation. But as crazy as that standard is, its origins make sense. Yes, it’s a crazy standard - one of the most deferential in all of law. That level of deference is so great that even if Goodell made mistakes of fact and law, his decision would have to stand so long as he was at least arguably trying to construe the collective bargaining agreement. The 2nd Circuit hung its hat on the long-standing labor law principle that the court’s review requires extreme deference to the arbitrator’s (Goodell’s) opinion. Ignore the facts, stop the whining about fundamental fairness and focus on the review standard.
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But he’ll need an immediate Hail Mary to make that happen.Ī successful legal case for Brady starts with undermining the existing “standard of review.” (Think of that concept as setting the degree of intensity that the court can use to examine and question Goodell’s conclusions.) One thing I know for sure - the legend of Tom Brady should not be unfairly tarnished by scant evidence of The Quarterback Sneak. But those who bothered to read the second half of that March 2 op-ed know that I urged Brady’s team to raise a different legal argument. And if pushed, I’d say the odds remain flatly against him. That answer is not nearly as flashy as my previous bold prediction. Once labeled a heretical fool (I’m told that one subterranean legal and comedic genius “commented” that I had a law office in my mother’s basement), I now hear from worshippers of all-things-Pats asking for my opinion on the critical question of the moment: Does Brady have any shot at an appeal? Yesterday’s critics, at least some of them, have granted me temporary absolution. Commissioner Roger Goodell may have acted (ostensibly) within his authority, but that does not make his decision, particularly his choice for the level of discipline, correct. But as a Brady and Patriots fan I am not the least bit happy. Ridiculed by sports radio, and slandered by subterranean online critics (I can take it, but who are these people?), I may be partially vindicated. My blasphemy, God (or equivalent Pats deity) forbid, stemmed from my trust that the appeals court would actually apply the long-standing legal rules that govern federal labor arbitration cases. I had the audacity to raise the possibility - OK, I expressed my view with a good deal more confidence - that the appellate court would actually rule in favor of the National Football League, not Brady. Back on March 2, I filled this space with heresy - daring to suggest that Tom Brady would lose his legal battle before the 2nd Circuit Court of Appeals.