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Takeaways From Tom Brady's Filing For En Banc Rehearing With Second Circuit

By Michael Hurley, CBS Boston

BOSTON (CBS) -- And so, the next logical step has been taken in the no-end-in-sight saga known as "DeflateGate," as Tom Brady's high-powered legal team has written its formal petition for the case to be reheard by the U.S. Court of Appeals for the Second Circuit, and it was formally filed on Monday afternoon.

The request, written by 75-year-old Ted Olson of Gibson Dunn, remains a major long shot, as very few cases are chosen to be reheard by the Second Circuit. However, it must be remembered that this case is extremely unique, and it's garnered much more public attention than most cases ever receive. The onus is on the Second Circuit to get this decision right, because it will be a precedent-setting case which will be easily accessible for years to come.

So, don't write this one off as a one-in-a-million chance. The odds are not against Brady in the way that the "three one-hundredths of 1 percent" number might indicate.

With that, here's a look at some of what stood out from a draft of the 15-page filing from Olson. If you so choose, you can read the full filing here.

The Gist

UPDATE: This section has been edited to reflect some changes in the opening page of the final request.

Olson doesn't mess around. Here's his opening sentence:

"This case arises from an arbitration ruling by NFL Commissioner Roger Goodell that undermines the rights and expectations of parties to collective bargaining agreements, and runs roughshod over the rule of law."

You have our attention.

Olson added that Ted Wells' investigation was "falsely portrayed as independent" by Goodell.

Olson then continued, noting that the precedent set by Judge Denny Chin's and Judge Barrington Parker's ruling could threaten the rights of all employees who are subject to labor arbitration.

"Goodell's biased, agenda-driven, and self-approving 'appeal' ruling must be vacated," Olson argued. "Although his arbitral authority was contractually limited to hearing appeals of disciplinary decisions, Goodell upheld Brady's punishment based on different grounds that were not the basis for his original disciplinary decision. In doing so, Goodell did not even mention or discuss the collectively bargained penalties for equipment-related violations -- the very misconduct he alleged. A divided panel of this Court affirmed Goodell in a decision that repudiates long-standing labor law principles and that, if left undisturbed, will fuel unpredictability in labor arbitrations everywhere and make labor arbitration increasingly capricious and undesirable for employers and employees alike."

This was expected, as Olson did mention the potential impact of the current ruling when he wrote to the Second Circuit to request an extension for his appeal window.

Later, Olson laid out quite succinctly why this seemingly frivolous case about footballs may actually carry much more significance than initially believed.

"The panel decision will harm not just NFL players, but all unionized workers who have bargained for appeal rights as a protection -- not as an opportunity for management to salvage a deficient disciplinary action by conjuring up new grounds for the punishment," he wrote. "The panel decision will also harm management by freeing labor arbitrators from collectively bargained limitations on their authority, enabling them to dole out their own brand of industrial justice. Because the panel has adopted rules for reviewing labor arbitrations that conflict with those applied by the Supreme Court and the Eighth Circuit, this Court should grant rehearing."

Check that one line out one more time: "an opportunity for management to salvage a deficient disciplinary action by conjuring up new grounds for the punishment."

That's harsh. Olson means business.

In this instance, it's about Goodell tacitly admitting that his multi-million dollar investigation came up short and then deciding to leach onto the destroyed cell phone as a grounds for punishment. But it's clear that if such action by an "independent arbitrator" is considered to be legal and fair by a court of this level, it would tip the scales in the balance of labor relation cases going forward.

The Details

Olson contested the Second Circuit's ruling on two main points.

First, when Roger Goodell affirmed his own decision based on the destruction of a cell phone instead of the grounds for which the punishment was initially issued, he acted improperly. And -- smartly and as expected -- Olson appealed to Robert Katzmann, the chief judge of the Second Circuit who wrote a dissenting opinion when the ruling was issued in April.

"Chief Judge Katzmann had it exactly right when he explained that when the Commissioner 'changes the factual basis for the disciplinary action after the appeal hearing concludes,' he 'exceeds his limited authority under the CBA to decide 'appeals' of disciplinary decisions,'" Olson wrote.

Olson also said that the ruling from the Second Circuit "conflicts with bedrock labor-law principle." So the bravado and chutzpah that we often saw in Jeffrey Kessler's filing is certainly not absent here.

The second point of contention is that Goodell "ignored" the schedule of penalties, as determined by the CBA, which said if Brady was guilty of participating in a deflation scheme, the punishment should have been a fine.

It's an interesting strategy, considering this was the area which proved to be Kessler's undoing in front of the Second Circuit in March. The ambiguity of the wording of the fines and suspensions was argued in court that day, with Chin and Parker ultimately deciding that the punishments listed were minimums and that the league could impose stiffer punishments as it saw fit. It's sensible for Olson to not abandon this claim -- and he again appealed to Katzmann, who thought the deflated football punishment should have been in line with the punishment associated with stickum use -- but based on the way it was received last time in court, it may prove to be an uphill battle.

The Nitty-Gritty

The argument for the Second Circuit to rehear the case was twofold.

1. The Panel Opinion Conflicts With Stolt-Nielsen And Bedrock Principles Of Labor Law By Approving An Award That Exceeded The CBA's Grant Of "Appellate" Authority Over Disciplinary Decisions.

Here, Olson delves into the case law that supports the argument that Goodell exceeded his authority as arbitrator. He went so far as to say that Chin and Parker got "it exactly backward" when they ruled that Article 46 of the CBA gave Goodell sweeping authority because it did not set strict limits on his power.

"Under Stolt-Nielsen, the question is whether the parties affirmatively authorized the arbitrator to do more than decide an appeal from a disciplinary decision," Olson wrote. "The plain language of the CBA answers that question. As Chief Judge Katzmann correctly explained, the only authority the CBA granted the arbitrator was 'to decide 'appeals' of disciplinary decisions.'

"The panel majority's ruling also conflicts with the fundamental labor-law principle that an employer sanction 'must stand or fall upon the reason given at the time of' the sanction," he added, citing Elkouri & Elkouri's "How Arbitration Works" as well as United Paperworks v. Misco.

Olson stated that never before has a court upheld an arbitration decision which was based on new grounds -- or "a trial de novo" of sorts.

"The majority's decision cripples the ability of employees to challenge discipline," Olson wrote, noting that Brady wasn't even able to defend himself against the charges that Goodell as arbitrator ultimately made, because that's not what was on trial (so to speak) at the appeal hearing itself. "The majority's decision deprives employees of their right to fair notice of the conduct that could subject them to punishment."

And at the end of this section, it became crystal clear that Olson seems prepared and ready to take this case to the Supreme Court if necessary, because of what's at stake.

"CBAs commonly provide for an initial disciplinary decision followed by an appeal to an arbitrator. If that arbitrator has the power to act in a non-appellate capacity -- by upholding discipline for reasons not given in the order under review -- it will deter employees from invoking their appeal rights for fear the arbitrator could search for alternative grounds for punishment. Likewise, employers value the efficiency and predictability of arbitration. If, however, arbitrators are not confined to the authority expressly granted under the CBA -- if they are free [to] ignore probative CBA terms and apply their own free-ranging conceptions of industrial justice -- labor arbitration becomes a source of turmoil rather than a fair and consistent method of dispute resolution under the rule of law."

And you thought this was just about deflated footballs?

2. The Panel Opinion Conflicts With Boise Cascade And Other Decisions Holding That Vacatur Is Warranted Where An Arbitrator Fails To Address Critical Provisions In The CBA.

This issue dealt with Goodell "ignoring" the punishments laid out for stickum use and his decision to jump to comparisons of steroid use.

"[Goodell] did not explain why the steroid provision was more relevant to determining the penalty for an equipment-related violation than the penalty schedule for equipment-related violations," Olson wrote.

Olson cited the 2005 Tupper v. Boise Cascade ruling in the Eighth Circuit, in which an arbitration award was vacated solely because the arbitrator failed to acknowledge whether or not he considered a particular issue.

Olson charged Parker and Chin of having "sought to prop up Goodell" and that they supplied their "own interpretation of the critical contract terms rather than require the arbitrator to do so."

Olson claims that Goodell, as arbitrator, made a serious misstep when he failed to even acknowledge the consideration of the schedule of fines, and that such an error alone would be reason enough to overturn the decision and vacate the award. Again, Olson spoke in much grander terms than just this specific case.

"Under the panel majority's misguided approach, an arbitrator is now free to ignore critical provisions of a CBA reflecting collectively-bargained penalties. This holding will create great uncertainty in labor arbitrations," he wrote. "Even if the arbitrator believes the provisions in question are inapplicable to a particular dispute, the arbitrator must at least acknowledge them—thereby confirming that the arbitrator is actually applying the CBA and not 'doling out his own brand of industrial justice.'"

The Noteworthy

Some quick-hit highlights from the remainder of the filing:

First of all, citing the book "How Arbitration Works" is a subtly tremendous move. Here, Olson (in my view) is essentially staring open-mouthed, befuddled at the court's decision to overlook some of the most basic of basic fundamentals. It's a bold move, being so critical of two of the Second Circuit's judges, but it's apparently a part of the strategy, because Olson did not hold back.

Here are some more quotes that I found to be noteworthy.

"Commissioner Goodell nonetheless launched a so-called 'independent' investigation into alleged ball tampering co-led by the NFL's General Counsel Jeff Pash and Ted Wells of the Paul Weiss law firm. The investigation was obviously not 'independent': the General Counsel of the NFL helped prepare the final report, and the Paul Weiss firm served as arbitration counsel for the NFL during the 'appeal' before Goodell."

Obviously.

This section stood out not just because Olson was mocking the "independence" of the investigation, but he also threw some quotation marks around the word "appeal," thus signifying that the process which Goodell oversaw last June in New York City was a sham.

"The Report did not find that Brady himself participated in or directed any ball deflation, and the work of the consultants Paul Weiss hired to deny that environmental factors accounted for the pressure levels has been derided by independent physicists as junk science."

Tell you what -- the sad part of this whole thing is that Exponent will continue to make tons of money, even after getting exposed as not only twisting science but also in manipulating photographs and data to try to bend reality as much as possible to favor the predetermined outcome in its "testing."

"Goodell disciplined Brady through a subordinate, Troy Vincent."

Anyone following this case closely had to chortle at the sight of Vincent being labeled a subordinate.

"The panel decision stands in stark conflict with fundamental rules of labor law and undermines the rights of union members and employers alike. This Court should grant rehearing."

And that's that. Olson concluded his relatively brief request with a simple statement of fact.

Now, we wait to see how open the Second Circuit might be to rehearing the case.

You can email Michael Hurley or find him on Twitter @michaelFhurley.

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