Boston College Expert: Deflategate Appeal
Professor Yen is a nationally known scholar who has published numerous articles about copyright law, the Internet, Asian-American legal issues, and law teaching. He is the co-author of the casebook, Copyright: Essential Cases and Materials. Professor Yen has filed an amicus brief in a major copyright case before the United States Supreme Court. Before coming to Boston College, he practiced law in Los Angeles. Professor Yen is the director of the Emerging Enterprises and Business Law Program and currently teaches courses in intellectual property, business planning, torts, and a sports law seminar.
Escaping a four-game suspension will be tougher for Tom Brady than most realize, says a Boston College law professor.
“Most people think the judge is looking over Goodell’s shoulder and saying, ‘Do I think the NFL got it right?’ But that’s not really what most reviews of decisions like this involve,” says Boston College Law Professor Alfred Yen, a sports law expert. “The judge will ask, ‘Was it crazy of Goodell to make the decision he did or use the procedures he used? Did he abuse his discretion to make the call?’”
And that is where it gets murky for Brady. It's one thing for the judge to disagree with Goodell’s punishment after ruling the quarterback played a role in Deflategate then impeded an investigation. But it’s another for him to find the commissioner has no reasonable basis for his ruling, especially when the league’s collective bargaining agreement allows Goodell to serve as the final arbitrator any appeal.
“One of the things people have to understand is that there are so many contracts that people agree to which are very one-sided with respect to arbitration,” says Yen. “Courts are heavily reluctant to disturb those agreements. They say, ‘You agreed to it. We won’t overturn an arbitrator’s decision unless it’s totally nutty.’ And so what the NFL’s position is saying is, ‘Look players, you agreed that Goodell could sit as the arbitrator of the NFL’s discipline over Brady.’ And that’s no different than you and me and a credit card company’s arbitrator. You may think it was a wrong decision, but that’s not good enough. There has to be abuse of Goodell’s discretion with no reasonable basis for the decision before a court will interfere.”
Believers of Brady were encouraged after last week’s hearing where Judge Berman had tough questions for NFL lawyers. But Yen says the judge was just testing Goodell’s justification in case he has to make a ruling, something he does not want to do.
“Judge Berman wants the parties to settle. He does not want to have to interpret the collective bargaining agreement because if he decided for the NFL, then that’s going to possibly incentivize the NFL to run fast and loose and roughshod over the players in the disciplinary process. If he decides for the players, he’s going to invite every player who’s got a beef with NFL discipline to file a lawsuit just like Brady and tie everything up in litigation. Remember the whole point of saying, ‘We’re going to have binding arbitration’ is to avoid the fuss of litigation over discipline. So he doesn’t want to go there.”
And to avoid making a ruling, Berman will call both sides back to the federal courthouse Monday where in an off-the-record session, he will do everything he can to make them see the light.
“The most important conversations are going to happen out of earshot in the judge’s private chambers,” says Yen. “What he says off the record may be things that we have no idea about. And he’s probably going to lean on these folks hard and say, ‘Why are we wasting hundreds of thousands of dollars and hours and hours of my courtroom’s time over whether footballs were deflated in an NFL game? I mean, come on.’ And he’s going to say, ‘Mr. Brady, you have to be aware when you look at all these cases, it’s very rare for a judge to decide in favor of someone in your position. It happens, but it’s rare. You have to understand that, right? And Mr. Goodell, you’ve got to understand, you’ve got some serious problems with what you did. It may be rare for someone to lose a case in your position but you’re getting close to the line.’ I think those are the kinds of things Judge Berman will say.”
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