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NFL may need to rethink discipline policy after latest legal loss in Tom Brady case

Tom Brady
Quarterback Tom Brady and the Patriots are a 13 1/2-point favorite over the Rams this week.
(Mike McCarn / Associated Press)

New England quarterback Tom Brady is back, and NFL Commissioner Roger Goodell is on the ropes.

In a stinging rebuke to Goodell’s authority, U.S. District Judge Richard M. Berman on Thursday wiped out a four-game suspension given to Brady, the two-time NFL most valuable player, who had been punished for his role in an alleged football-deflating scheme.

Berman wrote in his 40-page opinion that Goodell’s handling of Brady’s case was “fundamentally unfair” and was “premised upon several significant legal deficiencies.” Brady has insisted he played no role in any decision to deflate footballs below the allowable limit before last season’s AFC championship game.

Although Brady’s suspension was lifted, the other penalties imposed on the Patriots remain in place. In May, Goodell fined the Patriots $1 million and stripped them of a first-round pick next year, and a fourth-round selection in 2017.

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The decision, which frees Brady to play in the Patriots’ Sept. 10 season opener against the Pittsburgh Steelers, undermines Goodell’s authority to hear the appeals of penalties he has imposed, and could lay the groundwork for a fundamental change in the way the league punishes players.

Shortly after Berman released his decision, the NFL announced it would appeal.

“We are grateful to Judge Berman for hearing this matter, but respectfully disagree with today’s decision,” Goodell said in a written statement. “We will appeal today’s ruling in order to uphold the collectively bargained responsibility to protect the integrity of the game. The commissioner’s responsibility to secure the competitive fairness of our game is a paramount principle, and the league and our 32 clubs will continue to pursue a path to that end. While the legal phase of this process continues, we look forward to focusing on football and the opening of the regular season.”

Patriots owner Robert Kraft, who has been sharply critical of the report prepared by investigator Ted Wells, said the decision supports the team’s claim all along that Brady did nothing wrong.

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“As I have said during this process and throughout his Patriots career, Tom Brady is a classy person of the highest integrity,” Kraft said in a statement. “He represents everything that is great about this game and this league. Yet, with absolutely no evidence of any actions of wrongdoing by Tom in the Wells report, the lawyers at the league still insisted on imposing and defending unwarranted and unprecedented discipline.

“Judge Richard Berman understood this and we are greatly appreciative of his thoughtful decision that was delivered today. Now, we can return our focus to the game on the field.”

The NFL has been on a losing streak when it comes to getting original suspensions to stick. High-profile discipline cases involving players Ray Rice, Adrian Peterson and Greg Hardy were all successfully challenged on appeal or in court.

“The kind of review and reversal he’s getting with almost drumbeat consistency is very different than that which is accorded arbitrators,” said Stanford law professor William B. Gould IV, former chairman of the National Labor Relations Board. “That suggests to me that the NFL is going to have to renegotiate their procedures and perhaps the issue of who is the final authority.

“Because the kind of sweeping review that this court seems to have given Goodell’s decision is the same approach already provided in these two recent decisions — Ray Rice and Adrian Peterson — and suggest that the courts don’t owe the least deference to his decisions.”

The implications of Berman’s decision extend well beyond the Brady situation, said USC law professor Jody Armour, and go to the heart of the way the NFL does business, as the only sports league whose commissioner both issues punishments and hears appeals.

“As beloved as Tom Brady is, this wasn’t just a victory for a particular player,” Armour said. “This case says you can’t discipline people without fair process. That means the person gets notice of the kind of behavior that will constitute a violation and trigger sanctions, that the person gets notice of what those sanctions will be, and there’s a fair and impartial decision maker at the appellate level and the original hearing level. Those kinds of guarantees must be provided.”

For the second consecutive year, the league is opening the regular season under a cloud of controversy. A year ago, Goodell was under fire for his handling of separate episodes of domestic violence by star running backs Rice and Peterson. Now, the so-called Deflategate scandal has dragged on for nearly nine months, and there is no clear end in sight. The topic has dogged the commissioner throughout. According to Amobee Brand Intelligence, 49% of digital content engagement about Goodell has been in regard to the Brady case.

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Legal expert Peter Carfagna compared the situation to a 15-round heavyweight fight, with Goodell and his legal team just absorbing a beating in the 10th.

“It’s a stunner this didn’t knock them out,” said Carfagna, a former chief legal officer of the media firm IMG. “It will go the distance through the appeals process. That’s rounds 11 through 15.”

Carfagna said Berman’s decision is especially surprising because of the previous reluctance of the courts — including the U.S. Supreme Court — to make decisions that override what’s contained in the collective bargaining agreements of sports leagues.

“It’s a really disruptive change,” he said. “This will rock the sports law world.… It’s a new world order if it’s upheld, but that’s a big if.”

Twitter was crackling Thursday with reactions to the Brady ruling.

“All players: Pay attention to what’s transpired. Respect Brady for his fortitude. And appreciate your Union’s focus on fairness & process,” tweeted former NFL linebacker Scott Fujita.

New England running back LeGarrette Blount, suspended for the season opener for violating the league’s substance-abuse policy, tweeted: “Let’s goooo TB12!!! This is gonna be a fun season!!! 1st win of the year for #PatsNation.”

On their official account, the Patriots simply posted a picture of Brady in a game. He’s pumping his fist in triumph.

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