DEFLATEGATE: ROUND II

(This post in authored by Alan Milstein)

Who says the NFL has no strategy when it comes to meting out discipline?

Not surprisingly, Commissioner Goodell wearing his Judge hat affirmed Tom Brady’s four game suspension he had issued while wearing his policeman hat. For weeks, the media had been speculating as to whether Brady and the Union would appeal the ruling to the player-friendly federal district court in Minneapolis. The Commissioner’s forgone decision seemed ripe for reversal given the obvious bias of an arbitrator asked to overturn his own prior decision, the fact that the evidence was entirely circumstantial and inferential, and because the rule seemed to apply only to teams not players.

As most litigators know, when you obtain a judgment for money damages in arbitration, you need to have it confirmed in court to force the defendant to fork over the money and not suffer the ignominy of what in Pennsylvania we call a writ of execution. But there is absolutely no need for the NFL to have a court confirm an arbitration decision like the one handed down in Deflategate. Such a decision would be self-executing.

So why did the NFL begin an action in federal court in Manhattan to confirm the arbitration award seemingly within minutes of issuing the decision? Because it wanted to be the first filer and avoid facing Judge Doty or one of his Minnesota brethren. To the league, these were more fearsome than Page, Eller, Marshall and Larsen, the legendary Purple People Eaters.

Nothing of course can keep Brady and the Union from filing a Motion to Vacate the award in Minnesota. Sections 9 and 10 of Title 9 of the U.S. Code, however, suggest that, in the absence of an agreement as to which court an arbitration award may be confirmed, the parties must file in the district in which the arbitration had been held, which was the Southern District of New York. But the Code uses the word “may” not “must.”

If Brady and the Union do file in Minnesota, one question is whether the “first to file” doctrine would mean the NFL’s preemptive strike would cause it to prevail in a battle of the courts. As our learned colleague Daniel Wallach points out, however, “courts have departed from a 'first-to-file' rule where one party files its lawsuit in anticipation of an impending suit by the opposing party.” That would certainly be the case here since the NFL had no good reason to file first other than to anticipate that Brady would file in an unfriendly jurisdiction.

My personal view is that the decision will be vacated whichever court hears the appeal. In the words of Title 9, the court may vacate the award “where there was evident partiality . . .in the arbitrator.” That would seem an easy pass to complete.

-- Alan Milstein