September 6, 2015 – Peter Decato

Okay. I’ll admit it. I read the 40 page decision handed down by Judge Berman in the Tom Brady case.

As many of you know, Tom Brady was the main target of the NFL in the “deflate gate” controversy. What Judge Berman decided was that the NFL hadn’t been “fair” in dealing with Tom

Brady and that the NFL had denied Tom Brady fundamental due process. Due process is guaranteed to all of us by the 5th and 14th amendments to the U.S. Constitution and Tom Brady is entitled to it as well. That’s good to know.

So on this Labor Day, celebrate one for labor! Raise a flask to the notion that in this country there must be fairness when dealing with employment issues.

In Tom Brady’s case, the Court found that Tom Brady hadn’t received notice that he could receive a four-game suspension for “general awareness” of ball deflation by others or for participating in any scheme to deflate footballs. He also lacked notice that he could be penalized for not cooperating with the ensuing investigation.

Judge Berman also decided that Tom Brady had no notice that his discipline would be the equivalent of the discipline imposed upon a player who used performance-enhancing drugs. Proper notice is at the core of our judicial system. Just ask the NFL. They now know about this fundamental principle of law.

The Court found that the NFL’s steroid policy cannot reasonably be used as a policy to compare to Tom Brady’s four-game suspension for alleged ball deflation by others in the first half of the AFC Championship Game and for noncooperation in the ensuing investigation. How on earth could the NFL equate ball deflation with steroid use? It’s like comparing an elephant to a walnut but that’s what the mighty NFL attempted to do in Tom Brady’s case.

What really happened in Tom Brady’s case is that Commissioner Roger Goodell relied onTom Brady’s knowledge of a broadly stated collective bargaining agreement policy of “conduct detrimental” to the game. Judge Berman said “no” and “wait a minute here.” The rules that apply to a player are those specific player policies regarding equipment violations, not the general rule that prohibits conduct detrimental to the game of football. Score a touchdown for Labor and give them the kick after.

No need for them to bother kicking it. Just give them the point. Here is one of my favorites from the decision. The Court found that Goodell’s denial of the Players Association’s motion to produce certain investigative files, including notes of witness interviews, for Brady’s use at the arbitration hearing was fundamentally unfair. Duh! Of course it is unfair. Of course,

Tom Brady was prejudiced as a result of not being given this information. The interview notes were, at the very least, the basis for the Wells Report, so Tom Brady was clearly prejudiced by his lack of access to them.

My dad was in business and he wasn’t terribly fond of Unions. I hope he will forgive me if on this single occasion, I say “congratulations, Labor.” You kicked management’s butt and they deserved the kicking. I’m glad you had Tom Brady’s back.