Why I Believe Tom Brady Will Eventually Lose On Appeal

The recent victory for Tom Brady provided by Judge Richard M. Berman, begins its legal analysis with this quotation:

"Although judicial scrutiny of arbitration awards necessarily is limited, such review is

sufficient to ensure that arbitrators comply with the requirements of the statute at issue." Gilmer v. Interstate/Johnson Lane Com., Ill S. Ct. 1647, 1655 (1991) (quoting Shearson/Am. Express Inc. v. McMahon, 107 S. Ct. 2332, 2340 (1987)). "The deference due an arbitrator does not extend so far as to require a district court to countenance, much less confirm, an award obtained without the requisites of fairness or due process." Kaplan v. Alfred Dunhill of London, Inc., No.  96 Civ. 259 (JFK), 1996 WL 640901, at *7 (S.D.N.Y. Nov. 4, 1996)."


It is rather clear that the good judge stated how he wanted the result to turn out and then instructed his clerk to find ANY case law (even 20-25 years old) that supported that ruling.  As recently as 2013, the U.S. Supreme Court in Oxford Health v. Sutter explained that an arbitrator's ruling should almost never be overturned:

So long as an arbitrator "makes a good faith attempt" to interpret a contract, "even serious errors of law or fact will not subject his award to vacatur."

Under the FAA, courts may vacate an arbitrator’s decision "only in very unusual circumstances." That limited judicial review, we have explained, "maintain[s] arbitration’s essential virtue of resolving disputes straightaway." If parties could take"full-bore legal and evidentiary appeals," arbitration would become "merely a prelude to a more cumbersome and time consuming judicial review process."  Here, Oxford invokes §10(a)(4) of the Act, which authorizes a federal court to set aside an arbitral award "where the arbitrator[] exceeded [his] powers." A party seeking relief under that provision bears a heavy burden. "It is not enough . . . to show that the [arbitrator] committed an error—or even a serious error." Because the parties "bargained for the arbitrator’s construction of their agreement," an arbitral decision "even arguably construing or applying the contract" must stand, regardless of a court’s view of its (de)merits.

So, the real question for the Second Circuit on appeal is whether there are two sets of standards for arbitration -- one for football arbitration and one for every other type of arbitration.  All arbitrators will get the benefit of the doubt, even if clearly wrong.....unless that arbitrator is Roger Goodell.

The fact of the matter is that the NFLPA bargained for arbitration.  Arbitration, by its very nature, allows a lot of terrible decisions to stand.  That is the entire theory of arbitration -- you agree on someone or some panel of people to tell you what your legal rights are.  They may be wildly wrong, but a court isn't going to overturn that result so long as the arbitrator tried to be fair.  As the Supreme Court added, arbitrator decisions generally get upheld whether "good, bad, or ugly."  If this isn't the rule for NFL players, then the courts should simply say that is the case - when they agree to allow The Commissioner to be an arbitrator they can still say he decided wrong. 

I would imagine that if  the NFL just simply argues the proper legal standard to the Second Circuit that the NFL will prevail.