I'm Michael McCann a Sports Illustrated legal analyst and I'm teaching a college course on Deflategate. AMA.

1) What do you think of the NFL's chances of getting the decision overturned on appeal, based purely on the judge's reasoning (i.e. excluding the "it depends on who's selected" factor)? It seems to me that Berman's decision didn't make any obvious errors, but what do you think?

2) Do you think judge Berman's inclusion of grounds on which he declined to rule (last full page of the decision) indicate that, if the case is remanded, he'll pursue those angles as further reasons to vacate?

1) I tend to agree. Judge Berman's opinion was logical and well-reasoned. He was more critical of the NFL than I expected him to be, by which I mean I didn't expect his tone and style of writing to be so adamant. It was immediately clear that he totally rejected the NFL's legal theories . My instinct is that Brady will win the appeal (excluding the who's on the appellate panel factor).

2) That's how I read it, too, but it's not entirely clear. At a minimum it suggests that it if its reversed and remanded, Judge Berman could try another means of denying the NFL a win, and that could also lead to an even longer litigation calendar -- perhaps into 2017. There's a part of me that thinks this litigation will last for several more years and Brady will retire before it's over--and he'll never serve a suspension.

What is your opinion on Lester Munson's reading of the case who predicted a win for the NFL? How did he get it so wrong?

I obviously disagreed with Lester about the legal issues involved in Deflategate and Brady v. NFL, but he has done a lot of great work over the years and we'll have to see how the appeal works out. I also think it's good that there was debate between legal analysts - it brought out more insights for readers.

Most commentators I've seen who called the ruling wrong were all making the same mistake. They were asking "What DOES the CBA say?" rather than what Kessler argued and Berman decided "What CAN a CBA say?"

What if the CBA said explicitly that the penalty for deflating balls was to have your left hand cut off. The NFL could argue all day that was a collectively bargained provision but the judge would (presumably) say it can't be legally enforced.

Was this not the question at hand? The CBA says, in effect "The commissioner as arbitrator can do whatever he wants" but there are legal limits that supersede the power granted by the CBA (fairness due process etc).

What if the CBA contained an explicit provision that said "Players have no right to call or cross examine witnesses during an arbitration"? CAN a CBA legally say that? Would it be enforcable? If not what legal rights CAN be surrendered in a CBA, certainly some are by the very existence of arbitration agreements.

Very interesting point and right on, too. This gets at the role of the law of the shop and other relevant laws that govern what a CBA can do and can't do. For instance, a CBA can't "contract around" the Americans with Disabilities Act.

Hi Michael, thanks for all you're great insight this year, been following you on twitter for a while now and always catch your interviews with WEEI.

My question is about Judge Berman ruling that the NFL violated the CBA specifically Article 46 regarding Nash not being available. Was this the first time that this argument had been made? I've been following like a dog and I was very surprised when I first heard of this after the ruling was made. Thanks for doing this AMA!

Edit: 46

Thank you for the kind words. I believe the judge focused on Jeffrey Pash not being available. This was raised before since Pash edited the Wells Report. Whether his edits were merely cosmetic or substantive is unknown, and Goodell denying Kessler an opportunity to ask Pash about that (and his accompanying notes) was a major process problem in the hearing.

Michael, do you have any idea how many time Judge Berman has been overturned on appeal?

Interesting question, I'm not sure of data on that. I will try to find out. Anecdotally it sounds like he is rarely overturned on appeal, but I'd want to see the data before reaching that conclusion.

I keep hearing how hard it is for athletes to successfully sue for defamation of character. Do you know of any celebrities that have won these types of lawsuits, and what type of evidence did they have to provide? Realistically, would Brady have any chance of winning if he decides to sue?

In other countries, most notably the U.K., celebrities have had more success suing under defamation law because their defamation laws are favorable to plaintiffs. Sharon Stone, Keira Knightly have won (or struck favorable settlements) over there. But in the U.S. we haven't seen the same success. Jesse Ventura won in a controversial case involving Chris Kyle, but that was an exception. The main problem is showing actual malice -- that an untrue statement was made knowingly or intentionally. It's difficult to assemble proof to show that. As to Brady, I strongly doubt he'll now sue for defamation. He has beaten the NFL and, for all intents and purposes, has been vindicated. He would also need to link the NFL to media leaks, which can be hard because reporters would do everything possible to not cooperate. Also, even if he wins a defamation suit, it would only pay him money and he's reportedly worth in the ballpark of $120 million. A lawsuit would also be a distraction and time consuming. I just don't see the upside for him (not to mention he would be subject to pretrial discovery if his lawsuit gets past a motion to dismiss by the NFL).

Michael, I read today that even if Patriots wanted to appeal their penalty, they would likely lose due to how the teams are regulated by the league. What agreement are the teams bound by within the NFL? Why would it be more challenging to win an arbitration?

That commentary is correct. The Patriots would likely lose in that pursuit, but I think the team could create an argument that would have legs. Franchises are governed by a set of league documents that owners drafted and implemented. They include the Constitution and Bylaws. They are different from the CBA since the CBA is the agreement--a contract, really--between the players and owners, and because of federal law the CBA is exempt from Section 1 of the Sherman Antitrust Act (unlike the Constitution and Bylaws, which could be challenged under antitrust law). When you buy a team, you agree to play by the league's rules and not sue the league. This is a problem for Kraft if he elects to challenge the team's punishment (as is the fact that the deadline for appealing passed in May). I wrote about this yesterday towards the end of this piece: http://www.si.com/nfl/2015/09/03/deflategate-tom-brady-suspension-overturned-roger-goodell-nfl-nflpa

You were one of the few who predicted a Brady win, Why did you feel so confident, also on realistic terms , how long will the nfls appeal take?

Thank you, Starfoxer. I felt confident because I believed the NFL made too many errors in the manner in which it went about investigating, notifying and punishing Tom Brady. I also thought an important factor was that Goodell was the arbitrator. Many wrote that federal judges almost never vacate arbitration awards. That is true. But in all or almost all of those cases, they involved neutral arbitrators. Goodell was clearly not neutral. I understand the CBA permitted him to be the arbitrator, but that came with a price for the NFL: it made some of the favorable precedent for the league less binding on Judge Berman. I believe the appeal will take well into next summer and possibly beyond, since the losing side can petition for an en banc review.

Do you believe there is sufficient evidence to conclude Brady or the Patriots cheated?

I don't, based on what I have seen (and that is pretty much everything that has been made publicly available). There is not actual evidence, in my view, to conclude with any justifiable certainty that Brady or the Patriots cheated. I know many people "think" they did and I know there are some questionable aspects to what happened (e.g., the deflator text; the bathroom), but when proof is lacking, "think" is just speculation. No court or jury, in my view, would convict either Brady or the Patriots of cheating (unless that court is the NFL).

Can they put in the CBA some type of threshold of evidence for player misconduct when it comes to suspensions?

They could, but that would require a modification of the CBA and that is unlikely. To the extent the NFL and NFLPA agree to revise Article 46, it probably wouldn't occur for some time. Their current CBA isn't up until 2020. But I wonder if they might need to address this sooner.

Hi Michael. Thanks for being here.

Not sure this question is entirely related to what you're teaching or to the legal field but here goes. I'm of the mind that the NFL is simply mastering the art of staying in the news 365 days/year. Goodell is the sacrificial lamb that is bungling things to keep the NFL relevant in March, June and August. It's amazing to have the NFL be top news when the NBA playoffs, MLB all star game, or NHL finals are going on. Each of the last few years some NFL-manufactured crisis has kept the league in the news during the off-season (deflate-gate, Ray Rice, concussions, etc). Is there something to this, or am I being conspiracy-theory-ish?

Thanks!

It's an interesting idea. I don't think it's what's going on, but it's not automatically implausible either. After all, there does seem to be a WWE-quality to the NFL where its player disciplinary controversies seem completely unnecessary and easily avoidable but it's as if the league welcomes the fight and the continuous news coverage it generates. At some point you have to wonder what's going on. I think it's just the league is not doing a good job on player controversies but I understand why you have the view you've outlined above.

What's been the most frustrating aspect of this entire situation, to your mind?

Alternate Questions: If you could force one person to admit actual facts & truths in regard to Deflategate, other than Goodell, who would it be? And why is it Munson?

If you had a nickel for every time Bart Hubbach said something ignorant & false during all of this, which color Rolls Royce would you buy?

To be honest, it's been an incredible experience and opportunity for me to closely follow this story and get to analyze it for the public. In that respect, it has not been frustrating at all. But I know what your question is getting at. It is frustrating when I read something to the effect of "The NFL can do whatever it wants because of Article 46 AND federal courts never vacate arbitration awards!!" -- that's just wrong and has been consistently proven wrong. It's as if people didn't learn from the Ray Rice and Adrian Peterson wins to see that the NFL really can't do whatever it wants on matters of player discipline.

Can you explain why the Steve Garvey case has no bearing on this? What the Supreme Court said

We recently reiterated that if an " 'arbitrator is even arguably construing or applying the contract and acting within the scope of his authority,' the fact that 'a court is convinced he committed serious error does not suffice to overturn his decision.' When an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator's "improvident, even silly, factfinding" does not provide a basis for a reviewing court to refuse to enforce the award.

I wouldn't agree with the proposition that the Garvey case has no bearing. It clearly, in my view, has bearing and it was arguably the NFL's best case. I'm sure it will get significant attention in the NFL's appeal. That said, the NFL didn't seem to have a response to the fact that Garvey involved a neutral arbitrator and Brady did not. Garvey also had the right to challenge the arbitrator and seek his/her removal if there were grounds that this person was not neutral. Obviously Brady did not have that right. The response is the NFLPA agreed to this. That is very true, but it also suggests that Garvey is not the precise precedent that the NFL claims it to be.

How damaging is this outcome to Roger Goodell's reputation and ultimately, his job?

I don't think Deflategate will cost Roger Goodell his job. The league continues to make more money than ever. Whether Goodell deserves credit for that can be debated, but credit and blame flow up, and it's hard to argue against the NFL's financial success under Goodell's watch. Also, it is almost unprecedented for a commissioner to be fired. Fay Vincent received a vote of no confidence from MLB owners and he resigned, but even he wasn't fired. Goodell may also be owed a significant amount of money in his contract. That said 1) I expect owners will push Goodell to revamp the NFL's system of justice, including how they investigate and collect evidence; 2) Goodell's contract reportedly expires in 2019--I bet some owners, including the Krafts, will push for the league to consider alternatives. We could see real competition for Goodell's job in 2019.

What about the NFL's legal council? Looking from the outside, the NFL's legal team has lost every single time.

It would not surprise me if the NFL makes changes there, but I would argue the problem isn't the lawyers but the poorly-designed rules they are expected to defend.

But hasn't he effectively destroyed the perception that he can be counted on to be a neutral arbitrator?

How can he continue on in this capacity if the decisions he hands down are inherently biased and unfair?

He'll only cause more court cases to occur and more legal fees to be accrued.

I think Goodell should designate a surrogate every time he could be the arbitrator. But I'm sure he disagrees and I'm sure he'll be an arbitrator again. It's such a bizarre and poorly-designed system of justice. Amazing how the NFL can be so exceptional at certain things and so illogical on this particular issue.

Do you think ESPN's relationship with the NFL led their legal experts, like Lester Munson, to continually insist this was a slam dunk for the NFL?

I know some people have that suspicion, but I honestly don't think that was the case. Legal analysts who thought the NFL would win, I believe, really thought that was the case. I don't think they were not encouraged to take that view. It's just they viewed the case from a certain light (the wrong light, IMO, but a light that many attorneys who aren't in the media shared).

What would need to happen for the NFL to win on appeal?

The short answer is that the NFL would need to prove that Judge Berman misapplied the law in concluding that the NFL violated the law. The appeal will not involve new facts or witnesses. It is entirely about legal rules and their application.

Are the NFL lawyers just encouraging Goodell so they can line their pockets? They can't be as bad as they appear.

I'm not sure it's the NFL lawyers being bad as much as the case was probably more difficult than they expected it to be -- they might have underestimated how many problems the NFL had in the investigation. NFL lawyers also got, from their perspective, the wrong judge in Judge Berman.

Do you feel if the focus on Deflategate resulted in increased focus on sports law reporting accuracy/integrity?

We read that there are over 70 enrollments in your course. Do you see the interest being sustained?

(Thanks to deflategate and you, I now know what evidence being cumulative means)

Thanks. We're still in the add/drop period at UNH so I'm not sure what the final enrollment number will be but we're over 70. I hope it stays that way. Students didn't seem scared off by the first class so that is good (and they were incredibly understanding with 6 different TV stations in the classroom). In terms of sports law reporting and accuracy, I sure hope Deflategate leads to more accuracy. There were a lot of problems, in my view, with media's legal analysis of Brady v. NFL. There are also many people on Twitter and elsewhere who are not lawyers but who play lawyers on social media. I wish they didn't.

Do you feel that this ruling may spark other players to take the same course of action as Brady? i.e Greg Hardy. Do you think they have a chance to win?

I do. We have seen multiple attorneys and judges reject how the NFL applies rules, even in scenarios where the person clearly broke the law (Ray Rice, Adrian Peterson). I'm sure Jeffrey Kessler and his team would be able to come up with process-oriented arguments to help other players take the NFL on. If the NFL keeps losing, all that creates are incentives to keep going to court.

Given that the judge didn't like the "general awareness" standard and the lack of notice, is it possible that even if the Wells Report were 100% accurate, Brady didn't actually break any NFL rule?

In that scenario, I suppose Brady could still be fined for an equipment violation, but I'm not certain since Brady being "generally aware" of two other people doing something wrong (in this hypothetical) doesn't actually show Brady himself did something wrong.

Is Judge Berman a great judge or the greatest judge?

Is Kessler a great lawyer or the greatest lawyer?

Is there any way to audit your course online?

I heard, before the NFL and Brady began their legal fight, that Judge Berman is highly regarded by other judges and by attorneys who have appeared before him. He is known as being good at his job. That doesn't necessarily mean he reached the right answer in Brady v. NFL, but this is 70+ year old judge with a great deal of wisdom about the law. Probably a hard person to convince, especially when it is difficult to convince a judge to vacate an arbitration award. It says something about Brady's legal arguments and Kessler's skills that Kessler was about to do so. No way to audit the class online, unfortunately, but I'm working on an online companion course. Now that I get a break with Brady v. NFL on hiatus for a while, I'll have time to pursue that.

Am I crazy, or did the hysterical, if surreal, moment in the appeal hearing before Goodell where NFL atty Levy said "Sustained" really say it all about the process? Treating a kangaroo court like a court of law.

I think issues along these lines show that the bigger questions from Brady v. NFL have to do with the need for the NFL to reconstruct its system of justice. It tries to act like a hybrid of a police department, prosecutor's office, judge, jury and appellate panel. Even with the most competent and capable people, there are too potential conflicts with that arrangement to think it will succeed. And after loses in Tom Brady, Adrian Peterson, Ray Rice and the 4 Saints players, it seems like it should be revamped.

If the NFL loses it's appeal, is it possible Brady could be re-punished or possibly put through another arbitration process? Did the court ruling merely Vacate the arbitration award or did it disallow any punishment from happening?

Judge Berman only vacated the arbitration award, meaning it would be possible for the NFL to try to punish Brady again. Judge Berman, however, implied that the notice problem would be impossible for the NFL to cure but he didn't actually say that. For a longer take on this, I wrote about it here: http://www.si.com/nfl/2015/09/03/deflategate-tom-brady-suspension-overturned-roger-goodell-nfl-nflpa

What are the options for ruling by the appellate court? Is it either reinstate 4 game suspension or confirm Berman's decision? Or are there other options for the ruling like sending it back to Berman to rule again? Or sending it back to arbitration? Also, what if the court agrees in part and disagrees in part with Berman's decision?

The Second Circuit could affirm Judge Berman's decision. It could also reverse and remand for further proceedings, with instructions to Judge Berman to reconsider the issues in the case. This would likely lead to another hearing with Judge Berman. The Second Circuit could also reverse and that would reinstate Goodell's order. Brady would then be suspended.

Your thoughts on the chances of the NFL winning the appeal?

Generally, the side appealing is disfavored, so in that respect, I think Brady will probably win the appeal. But a couple of caveats that might help the NFL. 1) We don't know which three judges will hear the appeal. There are 23 judges on the 2nd Circuit, at least two of whom will be on the three judge panel (it's possible the last spot could be held by a federal district judge). Some of those 23 are pro labor, some are pro management etc. Until we find out who is on the panel, that's a huge piece of information missing about the appeal. 2) The appeal will likely be "de novo" meaning starting from scratch (at least as it relates to Judge Berman's order). This means while the appellate court will be deferential to Judge Berman (who is, from what I hear, highly regarded by Second Circuit judges) they won't rubber stamp what he wrote.

Michael, your piece today talked about the CBA prohibiting a player being punished twice for the same offense. He can't get a penalty from his Team and the league.

Could a Rogue owner circumvent the league by giving a player weak discipline in advance of the league dropping the hammer on him?

Far fetched I know but could it be done?

Tx

It's an interesting question and if the Patriots wanted to create a roadblock for the NFL, it could punish Brady for $1,000 so that the team is on record for punishing Brady. The problem with that plan is two-fold. 1) the commissioner's authority on punishments trumps that of teams; 2) it would be regarded by the NFL as dishonest conduct--especially given the supportive statements made by Robert Kraft about Brady--and potentially motivate the NFL to punish the Patriots again. You never know what the NFL will do!

Can you provide some more insight on Berman's notice reasoning? As I understand it, FAA§10 is the exclusive grounds for vacatur in arbitration agreements. Lack of notice might fall under §10(a)(3) or (4), but it seems kind of tenuous, and Berman definitely didn't make it clear what section of the FAA applied to notice (the evidence, cross-examination stuff seems more clear; in those sections Berman says lack of access to files/Pash "prejudiced" Brady, which is grounds for vacatur in §10). Do you have any insights on this? Thanks

That is true, and I suspect we'll see the NFL in its appeal argue that the judge's opinion didn't (in the NFL's view) sufficiently track the requirements of vacating an award under federal arbitration law. Among possible responses could be that the arbitration award here is unique and not equivalent to traditional ones in that the arbitrator was not neutral; another could be that the lack of notice was so egregious that it warrants vacating the award. But I think you've hit on an area that the NFL will stress in the appeal. I also the NFL will raise questions about the apparent fact-finding by the judge and the judge speaking with Jay Feely. We'll see.

What is your favorite episode of The Simpsons?

I'm not sure the name of the episode, but it's the one where Moe said, "I'm a well wisher, in that I don't wish you any specific harm." Brilliant writing.

I've never seen any commentary on this case http://www.courts.mo.gov/file.jsp?id=86195 from Missouri. The Supreme Court found that the appointment of Goodell as arbitrator was unconscionable and therefore invalid. I know it is only binding in Missouri but could the same legal arguments be used in other states? Was this only because of some unique Missouri law?

I wrote about the Todd Hewitt case here: http://www.si.com/nfl/2015/05/15/tom-brady-roger-goodell-deflategate-suspension-appeal. As you suspect, it is only binding in Missouri and only in relation to coaches (so no CBA-relationship as is true with Tom Brady). But it provides additional commentary that Goodell's "judge, jury and executioner" role doesn't seem to be well received by judges.

Why, on earth, did the NFLPA not insist on there being a neutral arbitor in the last CBA? I'm sure they tried for it, but that seems to me to be something worth holding out indefinitely on. This is hardly the first time Goodell being a biased arbitrator has been an issue.

I think the NFLPA focused entirely on economic issues, especially with a desire to end the lockout. You could also argue that economic issues impact 100% of NFL players, while disciplinary issues only impact about 1%, so shouldn't be a priority.

Hi Thank You for doing this! I hope you have time to answer my questions.

1) I remember you being among the first to confidently claim that Brady had a very real chance at obtaining an overturned suspension via Federal court. How early in the process did you see this as a possibility and why?

2) If I recall correctly the after filling in Minnesota the NFLPA case was assigned to Judge Richard H. Kyle who promptly sent the case back to New York. Is there any reason to believe he (Kyle) would have handled the case differently from Judge Berman and/or have come to a different decision? Is it possible Brady and the NFLPA lucked out on being late on the draw?

Thanks, I appreciate that.

1) At the risk of self-congratulations, I thought that Brady would likely get his suspension vacated by a federal court while I read Troy Vincent's letter to Brady. At the time, I didn't understand how the NFL was punishing Brady--and I read the letter several times over. Months later, Judge Berman didn't understand it, either.

2) It's hard to know how Judge Kyle would have handled the case, but I think the NFLPA is counting its blessings that the NFL filed first in New York and that Judge Berman was assigned the case.

Have there been any flagrantly terrible rulings in the NFL on legal terms over the past few years?

I think the NFL's investigation and accompanying punishments stemming from the Deflategate controversy come close to terrible. Even if the NFL "thinks" Brady and the Patriots did it, there was clearly not direct evidence relating to Brady -- and Judge Berman expressly said that -- and while the "deflator" text and bathroom incident raise questions about McNally/Jastremski, it requires speculation and logical jumps to conclude they are at fault. Even the "deflator" text, while I don't buy it has to do with weight loss, it doesn't automatically mean mean a plot to deflate below 12.5 PSI. But even assuming the absolute worst, I don't see why the Patriots should have been punished so harshly--especially after the Falcons were only docked a 5th round pick for a plot to pump in fake crowd noise when the other team had the ball (arguably a more significant advantage in terms of competitiveness).

Kessler presented four reasons why the award should be vacated, but Judge Berman only used two of them in his decision. Did he avoid the other two because he felt that lack of notice and lack of access to witnesses/documents was enough? Did he not want to get into the prejudice/fairness/independence argument because it would give too much ammunition on appeal, or because it was a weak point in Kessler's case? And was he limiting himself to avoid setting too many precedents in one decision?

Most likely reason is that Judge Berman didn't want to give the Second Circuit multiple grounds to potentially reverse him. It's also possible that if the Second Circuit reverses and remands, Judge Berman could use those two other reasons to again find for the NFLPA.

In order for the court of appeals to overturn the decision, do they need to find that Judge Berman made "clear error" in his ruling? What is the standard of review there?

It will likely be de novo review.

Where do you think Roger ranks on the most hated on the NFL commissioner list?

I wasn't around for some of the earlier NFL commissioners but I can say that Paul Tagliabue was clearly thought of more highly by many NFL fans and media than is Roger Goodell.

If you were representing the NFLPA in the next CBA negotiations, what kind of disciplinary changes would you push for to limit Article 46 power and change the investigation, punishment, and appeals process?

I like the NBA's model where they use a neutral arbitrator for significant suspensions (defined as any suspension in excess of 12 games). Maybe the NFL could adopt something like that -- suspensions in excess of 1 game must be heard by a neutral arbitrator.

Do you feel that networks that use legal analysts have an obligation to inform readers/viewers of that analyst's past legal disciplinary history?

Lionel I think you are asking me to criticize someone else. I will respectfully decline and say that your user name is excellent. One of the best characters in TV history.

Just curious: What was the basis for Subject Matter Jurisdiction here? I know some courts hold that vacatur/confirmation of arb awards don't implicate a federal question. So was this diversity jurisdiction?

One ground for subject matter jurisdiction was 29 U.S.C. § 185 - suits by and against labor organizations.

How common is it for someone with no legal background to be named an arbitrator in a labor dispute? It just seems to me that while the NFL had the right to name Goodell he was profoundly under prepared for the legal responsibilities that go along with it.

In some states judges who aren't lawyers can be elected, I guess that is one comparison. But as to arbitration, I don't know of a similar arrangement to what the NFL has where a person without a legal background and who is not neutral serves as the arbitrator.

What's your career like? Are you a lawyer? How did you focus your career in this direction? I'm currently in law school, and would love any tips you might have.

I've been an active member of the Massachusetts Bar for 13 years (can't believe it's been that long!). I practiced full-time for about four years before becoming a law professor, and was able to be on Maurice Clarett's legal team because of a law review note I had earlier written that his lawyer read and liked enough to invite me to join. My advice: use law school to write and get ahead of a topic. I wrote on the NBA's age limit. I talk about my career in this story: http://www.concordmonitor.com/community/town-by-town/concord/13774737-95/ray-duckler-mccann-speaks-softly-and-carries-a-big-stick

Did Brady do it?

I don't know, and because there isn't proof that shows he did it, I would not find him at fault.

What should have been Tom Brady's punishment?

I don't think there was enough evidence to punish Tom Brady under a defensible interpretation of the CBA. I get that some people "think he did it" but that's not proof. His apparent unwillingness to turn over personal materials can warrant debate and possibly criticism, but even in the worst light, there was not a specific policy in place that compelled him to turn over those materials.