By Michael Hurley, CBS Boston
BOSTON (CBS) — Amicus brief season has sadly come to an end, but not before “one of the singular figures in American legal history” weighed in.
That man, as described there in a New York Observer profile, is Kenneth Feinberg, who filed an amicus curiae brief with the U.S. Court of Appeals for the Second Circuit on Tuesday in support of Tom Brady in the quarterback’s fight for a rehearing after a panel decision reinstated his four-game suspension from the NFL.
Feinberg, 70, is known most for his work as the “Master of Disasters,” again a phrase coined by Observer. Feinberg has been tasked with administering funds to “victims and survivors of the nation’s most spectacular disasters.” That includes the September 11th Victim Compensation Fund, the BP oil spill fund, the One Fund Boston (for victims of the marathon bombing), the Penn State settlement, and the Newtown-Sandy Hook Community Foundation, to name the most well-known.
Yet he wrote to the Court as someone with “more than three decades of expertise as an arbitrator,” adding that he is “uniquely qualified to address the consequences of high profile arbitration.” He referenced his role on a three-man panel of arbitrators who decided the fair market value of the government’s seizure of the Zapruder film, as well as his role as co-arbitrator in deciding how to disperse “$52 million in legal fees among 51 lawyers who had pursued successful litigation against the German Government and industry seeking reparations for Nazi-era slave laborers.”
The man has quite the background. And as it turns out, when it comes to opinions on how NFL commissioner Roger Goodell handles business, Feinberg can pack a pretty strong punch.
To those who have followed “DeflateGate” closely, some of this may seem repetitive, but considering the source, it should ring loudly inside the Second Circuit. Here are some choice excerpts (I’ve added the emphasis):
“If the restrictions on arbitrators acting outside the scope of their authority, imposing their own industrial justice, or acting with bias are weakened so greatly as to permit the enforcement of the Commissioner’s award, it will fundamentally erode the public’s trust and confidence in arbitration.”
“… [T]he Commissioner’s decision here lacked even the basic hallmarks of due process — a fair process, before a fair tribunal. Decisions such as this have no credibility. That lack of credibility is only heightened here, where the non-neutral arbitrator’s key decisions consistently advantaged his own organization over the opposing party.”
“Until now, contracting parties have been assured that the court will ensure a baseline level of process: an opportunity to present evidence to an unbiased tribunal. The panel’s decision functionally eviscerates these protections. If it is permitted to stand, parties will and should question the risk posed by arbitration. Having witnessed the tremendous benefits arbitration and private dispute resolution have shown in myriad types of conflict, this would be a tremendous loss to our justice system. While arbitrators’ approaches may vary, the Commissioner’s actions were simply beyond the bounds.”
“[Goodell] reshaped the parties’ bargain to favor the NFL. This violates the most basic tenet of arbitration: the arbitrator’s authority is derivative of and subordinate to the contract.”
“The Commissioner’s award violated all these principles. The disagreement within the panel itself speaks volumes about the lack of clear notice to the parties about the scope of the appeal. This dynamic made it impossible for Brady to obtain fair process. The award sent a clear signal to the public about arbitration: procedural due process can be ignored. In so doing, he undercut the role of arbitration as a viable and effective alternative to protracted litigation.”
“Honest mistakes (whether errors of law or fact) are not reviewable. In contrast, unfair rulings and bias are intolerable.”
“First, an award that creates new violations never before identified or exacted punishment far in excess of that previously prescribed, is unenforceable. It is undisputed that the award here did both. If the NFL sought to add a new violation for failure to report wrongdoing, increase the penalty for equipment violations, or begin suspending players for obstruction, it would be within its rights to do so. But these changes must come through the bargaining process — not the arbitration process. The arbitrator, whose authority is derivative of the contract, cannot modify the contract.”
“It is relatively common for parties to select a non-neutral arbitrator, but this does not vitiate the arbitrator’s obligation to act without bias. The Commissioner used the guise of arbitration to dramatically alter many of the long-standing features of the parties’ course of dealing. Substantively, he created new violations and disciplinary powers. These were objectives for the bargaining table, not to be unilaterally imposed by a biased arbitrator in the arbitration itself.”
“So too the procedures the Commissioner utilized were not an exercise in arbitral discretion, but instead so one-sided as to reflect a clear intent to advantage one side. … In sum, Commissioner Goodell utilized his purported procedural authority to grant unilateral discovery to one side (accompanied by a threat of sanction), while affirmatively denying the other side’s request to the same materials. The notion that only one side would be entitled to the materials of the independent investigator is so egregious that it cannot be the result of good faith mistake — there is no provision in the CBA that could be construed to even contemplate this type of one-sided access. It is instead yet another clear indicia of the bias that permeated this proceeding.”
Feinberg’s conclusion was strong:
“The Commissioner impermissibly exceeded the scope of his authority in this matter. But more troubling, he used the vehicle of arbitration as a mechanism to rewrite the underlying bargain between the parties, to the sole advantage of his organization as against Brady and the Players Association. If this type of bias or capricious notions of industrial justice are upheld, the public should—and will—lose faith in the systems of arbitration and private dispute resolution that have become a parallel component of our justice system.
“Fair process before a fair tribunal cannot be an aspiration; it is an unwaivable, inviolable necessity.”
Feinberg is neutral in this case, and if anything, his history would suggest that he’d stand to benefit from arbitrators gaining more power than anything else. Yet he clearly took an interest in the case and felt compelled to urge the Court to reconsider its ruling. And that encouragement is spoken rather clearly: The efficacy of arbitration as a process for resolving disputes will be threatened.
An expert in the field who’s regarded as a great legal mind is making the case for Brady and Ted Olson: This ruling will not just affect rich football players. It will affect all unionized employees who are subject to collective bargaining and arbitration protections.
As is well known, the chance of Brady being granted a rehearing in the Second Circuit were remarkably slim — something like 0.03 percent of cases end up getting en banc rehearings in the Second Circuit. Yet the flood of support — from the AFL-CIO, from Feinberg, from 21 scientists, and from the Patriots (a member of the NFL Management Council, aka the winning side of this legal battle) — has changed the prospect of Brady’s rehearing chances.
Gaming and sports law attorney Daniel Wallach, who’s followed every “DeflateGate” development from the beginning, tweeted Tuesday that he gives Brady a 50 percent chance of being granted a rehearing, while attorney Alan Milstein predicted to Wallach that Brady’s odds are much closer to 100 percent.
Milstein later expounded on his thoughts via Twitter.
He is, unequivocally, correct. The Second Circuit should feel compelled to explore this case. Judges Barrington Parker and Denny Chin, from a spectator’s standpoint, did not care much to learn the details of the proceedings that led to arbitrator Goodell upholding commissioner Goodell’s decision. This was — in the eyes of the two judges — a matter that was entirely covered by the binding CBA, and thus no court could or should interfere.
But in bypassing the facts and the details of the case, the judges failed to recognize the lack of fundamental fairness throughout the proceedings, an issue which has been spotlighted by every legal mind who has weighed in on the case. That includes two prominent judges — Judge Richard Berman in the District Court and Chief Judge Robert Katzmann of the Second Circuit.
Now, America’s largest federation of unions has weighed in, stating the Court erred in its ruling and stands to set a dangerous precedent for arbitration. The New England Patriots have laid out in detail the corrupt practices of the league’s commissioner. Scientists from around the country have informed the Court that the league’s charges against Brady and the Patriots come from a complete lack of any scientific knowledge about air pressure. And a leading expert in the legal field has stated that “the panel’s decision functionally eviscerates” protections afforded to employees in arbitration.
Think of it this way: the Patriots — winners in the case — have essentially told the Court, “No thanks, our system is broken. You must reconsider your ruling.” And a noted and respected arbitrator has essentially said, “Arbitrators should not be given this kind of dangerous and unfair authority, lest we lose the usefulness of the entire system.”
Just like the presence of Ted Olson as Brady’s counsel, the addition of Feinberg’s voice to this legal circus is no small thing.
“If he were a painter or an artist, he would be the Picasso of the legal field,” former federal judge Jack Weinstein said of Feinberg in that Observer profile. “How’s that for a quote?”
“He’s a dominant presence,” Fordham law professor George Conk said.
Feinberg has the respect of Supreme Court justice Stephen Breyer, who said, “He listens. He’s very practical. He wants to achieve the practical result — always.”
This is someone who had no reason to interject himself and his opinion into the case, yet he did so in a rather forceful manner, all in the name of fair arbitral processes.
Again, this guarantees nothing for Tom Brady, Ted Olson or the NFLPA. But it should be undisputed that given the unprecedented level of national attention and given the flood of opinions filed to the Court, the panel of 13 judges will at the very least be forced to take a long look at the panel decision and consider this case the one rare exception that ends up being reheard en banc.
On Day 500 of “DeflateGate,” there’s even more reason to believe the finish line remains many moons away.