Supreme Court of the United States ______

No. C16-1729-1

IN THE Supreme Court of the United States ______

NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, on its own behalf and on behalf of Tom Brady, and TOM BRADY, Petitioners,

NATIONAL FOOTBALL LEAGUE MANAGEMENT COUNCIL and NATIONAL FOOTBALL LEAGUE, Respondents.

On Writ of Certiorari to the United States Court of Appeals for the Second Circuit

BRIEF FOR RESPONDENTS

Team No. 31 Counsel for Respondents November 21, 2016

QUESTIONS PRESENTED

1. Did the Second Circuit properly approve of an arbitral decision when the collective bargaining agreement granted expansive “appellate” authority over disciplinary decisions to the arbitrator and the Commissioner based his award in the agreement?

2. Did the Second Circuit properly refuse to uphold the vacatur of an arbitral decision when case law calls for extraordinary deference to an arbitrator’s interpretation and the Commissioner construed critical provisions of the collective bargaining agreement?

TABLE OF CONTENTS

QUESTIONS PRESENTED ...... ii TABLE OF AUTHORITIES ...... iv OPINIONS AND ORDERS ENTERED BELOW ...... 1 STATEMENT OF JURISDICTION ...... 1 STATUTORY PROVISIONS ...... 1 STANDARD OF REVIEW ...... 2 STATEMENT OF THE CASE ...... 3 SUMMARY OF THE ARGUMENT ...... 5 ARGUMENT ...... 6 I. The Arbitral Decision Was Within the CBA’s Grant of “Appellate” Authority...... 6 A. The Commissioner Had the Authority to Construct a Complete Factual Record...... 8 B. The Commissioner Had the Authority to Settle Procedural Questions ...... 10 1. The CBA Does Not Require Extensive Discovery ...... 11 2. The Commissioner Did Not Exceed His Authority When Excluding Pash’s Testimony ...... 12 3. The Commissioner Had the Power to Admit Inculpatory Evidence ...... 13 C. The Commissioner Had the Authority to Determine That Brady’s Misconduct Amounted to Conduct Detrimental to the NFL...... 14 D. The Commissioner Had the Authority to Affirm a Suspension for Conduct Detrimental to the League ...... 15 II. Vacatur Is Rarely Appropriate for Arbitral Decisions – And This Case Is Not an Exception ...... 16 A. Legal Precedence Does Not Recommend Vacatur ...... 17 B. The Arbitral Decision Draws Its Essence from the CBA ...... 18 1. The CBA Manifests the Scope of the Parties' Agreement...... 20 2. The Commissioner Resolved Ambiguities Within the CBA...... 22 3. Inconsistencies Among Prior NFL Arbitral Decisions Are Not Fatal ...... 25 C. The Commissioner’s Alleged Omissions Do Not Warrant Vacatur ...... 27 CONCLUSION ...... 31

iii

TABLE OF AUTHORITIES

United States Code 28 U.S.C. § 1254(1) (2012) ...... 1

29 U.S.C § 185(a) (2012) ...... 1

9 U.S.C. § 1 (2012) ...... 12

9 U.S.C. § 10(a)(3) (2012) ...... 12

United States Supreme Court Cases E. Associated Coal Corp. v. Mine Workers Am., Dist. 17, 531 U.S. 57 (2000) ...... 8

John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964) ...... 10, 11

Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064 (2013) ...... 8, 17, 31

Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662 (2010) ...... 5, 7, 8

United Paperworkers Intern. Union, AFL-CIO v. Misco, Inc., 484 U.S. 29 (1987) ...... passim

United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593 (1960) ...... passim

United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574 (1960) ...... 2, 7, 10, 19

United States Circuit Court Cases Boise Cascade Corp. v. Paper Allied-Indus., Chem. & Energy Workers (PACE), Local 7-0159, 309 F.3d 1075 (8th Cir. 2002) ...... passim

Bureau of Engraving, Inc. v. Graphic Commc’ns Int’l Union, 164 F.3d 427 (8th Cir. 1999) ...... 19

Chicago Typographical Union No. 16 v. Chicago Sun-Times, Inc., 935 F.2d 1501 (7th Cir. 1991) ...... 17

Clinchfield Coal Co. v. Dist. 28, United Mine Workers, 720 F.2d 1365 (4th Cir. 1983) ...... passim

Coppinger v. Metro-N. Commuter R.R., 861 F.2d 33 (2d Cir. 1988) ...... 12

Gas Aggregation Servs., Inc. v. Howard Avista Energy, LLC, 319 F.3d 1060 (8th Cir. 2003) ...... 23

Johnson Controls, Inc. , Sys. & Servs. Div. v. United Ass’n of Journeymen, 39 F.3d 821 (7th Cir. 1994) ...... 18, 19

LJL 33rd St. Assocs., LLC v. Pitcairn Props. Inc., 725 F.3d 184 (2d Cir. 2013) ...... 14

Local 1199, Drug, Hosp. & Health Care Emp. Union, RWDSU, AFL-CIO v. Brooks Drug Co., 956 F.2d 22 (2d Cir. 1992) ...... 2, 7, 17

Local Union No. 135 of United Rubber, Cork, Linoleum & Plastic Workers of Am. v. Dunlop Tire & Rubber Corp. of Buffalo, N.Y., 391 F.2d 897 (2d Cir. 1968) ...... 25

Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673 (7th Cir. 1983) ...... 15

Nat’l Football League Players Ass’n v. Nat’l Football League (Peterson), 831 F.3d 985 (8th Cir. 2016) ...... passim

Nat'l Football League Mgmt. Council v. Nat'l Football League Players Ass'n (Brady), 820 F.3d 527 (2d Cir. 2016) ...... passim

SBC Advanced Sols., Inc. v. Commc’ns Workers of Am., Dist. 6, 794 F.3d 1020 (8th Cir. 2015) ...... 25

Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16 (2d Cir. 1997) ...... 12

Wackenhut Corp. v. Amalgamated Local 515, 126 F.3d 29 (2d Cir. 1997) ...... 25

Williams v. Nat’l Football League, 582 F.3d 863 (8th Cir. 2009) ...... 15

United States District Court Cases Nat’l Football League Council v. Nat'l Football League Players Ass'n, 125 F. Supp. 3d 449 (S.D.N.Y. 2015) ...... 1

Sinai Hosp. of Baltimore, Inc. v. 1199 SEIU United Healthcare Workers E., 65 F. Supp. 3d 440 (D. Md. 2014) ...... 24

State Supreme Court Cases Spiska Eng’g, Inc. v. SPM Thermo-Shield, Inc., 730 N.W.2d 638 (S.D. 2007) ...... 24

Secondary Sources Bill Barnwell, NFL midseason awards: Can Tom Brady really be the MVP already? (Nov.7, 2016, 7:30 AM), http://www.espn.com/nfl/story/_/page/Barnwellx161107 ...... 16

NFL Owners Approve Rules Changes For 2016 (March 22, 2016), http://operations.nfl.com/updates/football-ops/ nfl-owners-approve-rules-changes-for-2016/ ...... 6

Roger Goodell, Final Decision on Article 46 Appeal of Tom Brady, 14-16 (July 28, 2015), https://nfllabor.files.wordpress.com/ 2015/07/07282015-final-decision-tom-brady-appeal.pdf ...... passim

Ryan T. Dryer, Beyond the Box Score: A Look at Collective Bargaining Agreements in Professional Sports and Their Effect on Competition, 2008 J. Disp. Resol. 267 (2008) ...... 16

Tim Sharp, A Tougher NFL Job To Get Than A Player (Sept. 18, 2014, 6:51 AM), http://www.cbsnews.com/news/ a-tougher-nfl-job-to-get-than-becoming-a-player/...... 6

OPINIONS AND ORDERS ENTERED BELOW

The opinion of the Second Circuit Court of Appeals is reported and appears at

Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 820

F.3d 527 (2d Cir. 2016). The opinion of the United States District Court for the

Southern District of New York is reported and appears at Nat’l Football League

Council v. Nat’l Football League Players Ass’n, 125 F. Supp. 3d 449 (S.D.N.Y. 2015).

It is also set out in the record at R. at 1-41.

STATEMENT OF JURISDICTION

This case is on appeal from a judgment ordered by the United States Court of

Appeals for the Second Circuit. The Supreme Court of the United States granted the petition for a writ of certiorari in the 2017 term of this Court. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS

This case arises under Section 301 of the Labor Management Relations Act,

29 U.S.C. § 185(a), which provides:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

29 U.S.C § 185(a) (2012).

STANDARD OF REVIEW

Judicial review of arbitration cases like this one is “very limited.” Major

League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509 (2001) (per curiam). It is effectively a two-step process with both inquiries stemming from the fundamental idea that “arbitration is a matter of contract.” United Steelworkers of Am. v. Warrior

& Gulf Nav. Co., 363 U.S. 574, 582 (1960).

First, the reviewing court must determine whether the arbitrator acted within the scope of his authority under the relevant collective bargaining agreement. See Local 1199, Drug, Hosp. & Health Care Emp. Union, RWDSU, AFL-

CIO v. Brooks Drug Co., 956 F.2d 22, 25 (2d Cir. 1992). Second, the reviewing court must determine whether the award “draws its essence from the agreement” or whether the arbitrator “dispense[d] his own brand of industrial justice.” See id.;

United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960).

STATEMENT OF THE CASE

In the 2015 offseason, the National Football League (“NFL” or “League”) notified Tom Brady that he was suspended for four games. R. at 382. The League and its players are bound by a collective bargaining agreement (“CBA”) negotiated between the NFL and the NFL Players Association (“Association”). R. at 76.

The letter clarified that Brady’s “role in the use of under-inflated footballs by the Patriots” in the 2015 AFC Championship Game earned him the suspension. R. at 382. Further, the letter explained that Brady’s actions “clearly constitute[d] conduct detrimental to the integrity of and public confidence in the game of professional football.” R. at 382.

As support for the Commissioner’s decision to suspend Brady, the

Commissioner used an independent investigation – the “Wells Report.” See R. at

382. The report outlined that Brady failed “to cooperate full and candidly with the investigation,” which called the integrity of the league into question. R. at 382.

Article 46 of the CBA expressly acknowledges that the Commissioner has the authority to discipline players for conduct that he determines to be “detrimental to the integrity of, or public confidence in, the game of professional football.” R. at 398.

Paragraph 15 of the NFL Player Contract reiterates this authority. R. at 406–07.

The Association appealed Brady’s four-game suspension. R. at 77. Article 46 provides a right for an appeal at a hearing at which the Commissioner may preside

“at his discretion.” R. at 399. The Commissioner held the hearing and issued a comprehensive twenty-page decision. R. at 78.

The Commissioner’s decision, which constitutes the “full, final and complete disposition” under the CBA, was to confirm Brady’s suspension of four games. R. at

78. In his decision, the Commissioner reiterated how Brady’s conduct was uniquely detrimental to the League and he detailed the differences between Brady’s conduct and the conduct of multiple other NFL players. Roger Goodell, Final Decision on

Article 46 Appeal of Tom Brady, 14-16 (July 28, 2015), https://nfllabor.files. wordpress.com/2015/07/07282015-final-decision-tom-brady-appeal.pdf. The

Commissioner also concluded that Brady “had more than adequate notice” that he could be suspended for his conduct. Id. at 16.

The League sought to confirm the arbitration award pursuant to § 301 of the

Labor Management Relations Act (“LMRA”). R. at 76. The Association sought to vacate the award. R. at 80-81.

The district court granted the Association’s motion to vacate the award and denied the League’s motion to confirm. R. at 1-41. The League appealed the decision, and the Second Circuit reversed, holding that the Commissioner’s decision must be confirmed. Nat’l Football League Mgmt. Council v. Nat’l Football League

Players Ass’n (Brady), 820 F.3d 527 (2d Cir. 2016). Now, the Association has appealed to the Supreme Court of the United States, and the Court granted certiorari on two issues.

SUMMARY OF THE ARGUMENT

I. The Commissioner Did Not Exceed His Grant of “Appellate” Authority.

The Commissioner did not his exceed his grant of “appellate” authority when he approved Tom Brady’s suspension for conduct detrimental to the game of professional football. In Stolt-Nielsen, this Court held that as long as an arbitrator’s decision has any basis – not necessarily a “sufficient” basis – in the arbitration agreement, then the arbitrator did not “exceed his authority.”

In the instant case, the Commissioner acting as the arbitrator in Brady’s appeal did not exceed his collectively bargained for authority when he constructed a final and complete factual record, settled procedural questions, defined “conduct detrimental,” and decided that Brady engaged in “conduct detrimental.” Each decision made by the Commissioner is at the very least arguably based in the collective bargaining agreement, which is all this Court has ever required. The NFL and the Association bargained for the Commissioner’s construction of the CBA. This construction should hold “no matter how good, bad, or ugly.”

II. The Arbitral Decision Drew its Essence from the Collective Bargaining Agreement.

Brady’s four-game suspension drew its essence from the collective bargaining agreement. Thus, vacatur is not required. Current legal precedence provides a very high hurdle for overturning an arbitral decision when an arbitrator acts within his grant of authority. As long as an arbitrator does not exceed his grant of authority and the award draws its essence from the agreement, the decision deserves an

“extraordinary” level of deference. This backdrop is critical.

An arbitral decision draws its essence from the arbitration agreement when the arbitrator does not ignore critical provisions of the agreement and his decision manifests the parties’ intent. In Boise Cascade, the Eighth Circuit Court of Appeals vacated an arbitral decision when abundant evidence existed that the arbitrator did not consider the parties’ intent, contravened that intent, and ignored critical terms.

Here, the Commissioner properly effectuated the parties’ intent and addressed the critical provisions within the collective bargaining agreement. Any alleged omissions are not so critical that they would necessarily change the outcome of the arbitrator’s decision. The Commissioner construed the contract, applied the contract, and overall his decision drew its essence from the contract.

ARGUMENT

I. The Arbitral Decision Was Within the CBA’s Grant of “Appellate” Authority.

In the NFL, the referees must control “the mosh pit of mayhem” on the field while taking into account the rules of the game.1 Some rules are seemingly trivial and some are extraordinarily complex. The remedy for an incorrect interpretation of a rule by a referee is not to put the season on hold – no matter how good, bad, or ugly the interpretation is – but rather to renegotiate the rules in the offseason.2

Like a referee's decision, an arbitrator’s decision must be respected, unless and until the terms of the CBA are renegotiated. Because the alternative to respect is

1 Tim Sharp, A Tougher NFL Job To Get Than A Player (Sept. 18, 2014, 6:51 AM), http://www.cbsnews.com/news/a-tougher-nfl-job-to-get-than-becoming-a-player/. 2 See generally NFL Owners Approve Rules Changes For 2016 (March 22, 2016), http://operations.nfl.com/updates/football-ops/nfl-owners-approve-rules-changes-for-2016/.

6 not just one less season of football, but the potential for strife in labor industries.

See Warrior & Gulf Nav. Co., 363 U.S. at 578.

In order to prevent industrial strife, this Court consistently acknowledges a

“decided preference for private settlement of labor disputes without the intervention of government.” United Paperworkers Intern. Union, AFL-CIO v. Misco, Inc., 484

U.S. 29, 36 (1987) (applying the Labor Management Relations Act). Stolt-Nielsen and other modern cases have further defined and reinforced the significant historical limitation on the power of the judicial system to referee arbitration proceedings. See Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010).3

The first step of any court’s evaluation of an arbitral decision is whether the arbitrator acted within the scope of his authority. See Brooks Drug Co., 956 F.2d at

25. In Stolt-Nielsen, this Court found that an arbitration panel “exceeded its powers” when it ordered a party to submit to class arbitration. 559 U.S. at 677. This

Court overturned the panel’s decision because it lacked any contractual basis for ordering class procedures, not because it lacked a sufficient basis. Id. at 676-77. The parties stipulated that an agreement on class arbitration had not been reached. Id. at 687. Thus, the panel’s decision was not “based on a determination regarding the parties’ intent.” Id. at 673 n.4. Simply stated, the panel imposed its own conception of sound policy when it ordered class arbitration proceedings. Id. at 675. In

3 Stolt-Nielsen applied the Federal Arbitration Act (FAA). 559 U.S. at 666. While the FAA is not binding law when reviewing labor arbitral decisions, it has been used for guidance. See Misco, 484 U.S. at 40 n.9.

7 imposing its own policy choice, the panel exceeded its grant of authority within the commercial arbitration agreement. Id. at 677.

In accord with Stolt-Nielsen, the Commissioner must respect the parties’ intent and construe the collective bargaining agreement. Id. at 675-77. If the

Commissioner “even arguably constru[ed] or appli[ed] the contract his award must stand, regardless of a court’s view of its merits.” Oxford Health Plans LLC v. Sutter,

133 S. Ct. 2064, 2068 (2013) (citing E. Associated Coal Corp. v. Mine Workers Am.,

Dist. 17, 531 U.S. 57, 62 (2000)). In the instant case, the Commissioner did not impose his own policy choices. He acted well within his grant of “appellate” authority when he: (1) constructed a complete factual record; (2) settled procedural questions; (3) made the ultimate fact determination that Brady engaged in conduct detrimental; and (4) affirmed Brady’s four game suspension.

A. The Commissioner Had the Authority to Construct a Complete Factual Record.

The Association and the NFL collectively bargained for the arbitration process that is established in Article 46 of the CBA. See generally R. at 398-400.

Section 1(a) of Article 46 of the CBA exclusively governs “all disputes involving a fine or suspension imposed upon a player for … conduct detrimental to the integrity of, or public confidence in, the game of professional football.” R. at 398. The player, upon receiving written notice of the disciplinary action, can appeal in writing to the

Commissioner. R. at 398. “The Commissioner may serve as hearing officer in any appeal under Section 1(a) of this Article at his discretion.” R. at 399. Article 46 grants the arbitrator – here, the Commissioner – broad authority to make a final

8 determination that a player engaged in conduct detrimental to the League based on a complete factual record. R. at 399.

The dissent below argued that the Commissioner changed the factual basis of the dispute when he went beyond the findings of the Wells Report, which states that Brady was “at least generally aware of the actions of the Patriots’ employees involved in the deflation of footballs and that is was unlikely that their actions were done without [his] knowledge.” R. at 382. Indeed, the Commissioner, in his final award, determined that Brady “knew about, approved of, consented to, and provided inducements and reward in support of a scheme by which, with Mr. Jasatremski’s support, Mr. McNally tampered with the game balls.” Final Decision on Article 46

Appeal of Tom Brady at 10. However, in making this final determination, the

Commissioner did not exceed his authority.

Article 46 calls for a “hearing.” R. at 398. As the Second Circuit stated, “the point of a hearing in any proceeding is to establish a complete factual record.”

Brady, 820 F.3d at 541. Going even further, the court acknowledged that it would be paradoxical for Brady to be allowed to provide exculpatory evidence at a hearing

“and at the same time insist that no new findings or conclusions could be based on a record expanded as a consequence of a hearing.” Id. Because Article 46 calls for a

“hearing” and because it would be nonsensical for an arbitrator to be limited in any way factually at the “hearing,” the Commissioner’s authority is at least arguably based in the collective bargaining agreement. Thus, the Commissioner is not

“imposing his own brand of industrial justice” and did not exceed his authority.

Enter. Wheel & Car Corp., 363 U.S. at 597.

Article 46 states that, upon completion of the hearing, the Commissioner has the power to render a “full, final and complete disposition of the dispute.” R. at 399.

Conceptually, a full and final disposition put Brady and the Association on notice that this “hearing” was their last opportunity to dispute the merits of their case.

This neutralizes any argument that Brady was not aware that he would not have the opportunity to rebut a debatably new set of facts and circumstances. Simply stated, Brady was aware that the Commissioner would consider a new set of facts in finally settling this dispute.

B. The Commissioner Had the Authority to Settle Procedural Questions.

Article 46 does not expressly prescribe answers to every possible question of procedure and it does not explicitly state how the arbitrator must construct the factual record. However, a collective bargaining agreement is “a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate.” Warrior &

Gulf Nav. Co., 363 U.S. at 578. Typically, for questions of procedure that grow out of the dispute, courts give substantial discretion to the arbitrator’s decision. See John

Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557–58 (1964) (deciding to leave to the arbitrator the questions of “whether grievance procedures … apply to a particular dispute and whether such procedures have been followed or excused”).

For instance, the Commissioner has the power: (1) to determine the extent of

10 discovery; (2) to exclude certain testimony; and (3) to consider the cruciality of certain inculpatory evidence.

1. The CBA Does Not Require Extensive Discovery.

The Commissioner’s decision to disallow more extensive discovery than

Article 46 outlines is a protected procedural decision. Brady, 820 F.3d at 535. Brady and the Association requested investigative records and the investigative team’s memoranda before the hearing. R. at 13. In accordance with Article 46, the

Commissioner denied this request. R. at 14-15.

Article 46 states – as the only parameter for discovery – that “the parties shall exchange copies of any exhibits upon which they intend to rely.” R. at 399.

Compare Article 46’s rule of discovery with Article 15, which allows “reasonable and expedited discovery upon the application of any party.” Brady, 820 F.3d at 546. The parties knowingly bargained for two unique discovery processes. If the Association wanted an extensive discovery process for an Article 46 appeal, the Association should have bargained for it.

The extent of discovery beyond Article 46’s one parameter is simply a procedural question for the Commissioner. This Court has held that procedural questions are left to the arbitrator. Livingston, 376 U.S. at 557-58. Here, the

Commissioner acted within his authority and arguably construed Article 46 of the

CBA when denying the Association's request for extensive discovery.

2. The Commissioner Did Not Exceed His Authority When Excluding Pash’s Testimony.

Excluding Jeff Pash's testimony is yet another example of a decision within the authority of the Commissioner. It is well settled “that arbitral fact-finding is not the equivalent of judicial fact-finding.” Coppinger v. Metro-N. Commuter R.R., 861

F.2d 33, 39 (2d Cir. 1988) (deciding that arbitrators are not bound by “the Federal

Rules of Evidence and of Civil Procedure … and other rights such as testimony under oath, cross-examination, discovery, and compulsory process are restricted”).

Thus, this hearing was not subject to judicial rules. Rather, this hearing was subject to explicit rules in Article 46 of the CBA and the Commissioner’s construction of

Article 46. Here, by excluding Pash’s testimony, the Commissioner arguably construed the CBA. Therefore, the Commissioner did not exceed his authority.

The Association attempts to find support that the exclusion of Pash’s testimony exceeded the Commissioner's authority through a narrow exception provided by the Federal Arbitration Act (FAA). Not only does the FAA not apply to this CBA, but also the Association’s assertion fails to meet this exception. 9 U.S.C. §

1 (2012). The FAA provides that an award may exceed the arbitrator’s power and be vacated when “the arbitrators were guilty of misconduct … in refusing to hear evidence pertinent and material to the controversy.” 9 U.S.C. § 10(a)(3) (2012). This exception is only appropriate when the decision violates fundamental fairness. See

Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir. 1997) (deciding that the arbitrator’s refusal to hear testimony by a company official violated fundamental fairness because a reasonable basis for the refusal did not exist).

Fundamental Fairness has not been violated here, however. The

Commissioner’s exclusion of Pash’s testimony was not an arbitrary exercise of his own brand of justice. The Association argued Pash’s testimony would be vital in understanding the preparation of the Wells Report. R. at 13. But the Wells Report states that it was “prepared entirely by the Paul, Weiss investigative team.” R. at

149. Pash was not a part of this investigative team. Thus, Pash’s testimony was not vital to understanding the Wells Report. It was appropriate for the Commissioner to rely on the “extensive testimony” he received regarding the investigation from Troy

Vincent and Theodore Wells. Brady, 820 F.3d at 546. This reliance was wholly within the Commissioner’s authority and the exclusion was a reasoned, fundamentally fair arbitral decision.

3. The Commissioner Had the Power to Admit Inculpatory Evidence.

The Association argues that the Commissioner exceeded his authority when he considered Brady’s act of destroying his cellphone as inculpatory evidence.

Before the hearing, “it was revealed that on March 6 – the same day that he was to be interviewed by the Wells investigative team – Brady … instructed his assistant to destroy the cellphone that he had been using since early November 2014.” Brady,

820 F.3d at 535. This revelation was not an example of new conduct by Brady.

Rather, this revelation provided the Commissioner with the full extent of Brady’s detrimental conduct because the Wells Report had already considered Brady’s lack of cooperation with the investigative team. R. at 382.

Thus, the decision to consider this inculpatory evidence falls squarely in line with the settled principle that “arbitrators have substantial discretion to admit or exclude evidence.” LJL 33rd St. Assocs., LLC v. Pitcairn Props. Inc., 725 F.3d 184,

195 (2d Cir. 2013) (holding that the arbitrator’s exclusion of hearsay valuation evidence was not an abuse of discretion). Simply stated, the Commissioner exercised his substantial discretion, granted to arbitrators generally and under Article 46, when he considered the admissibility of the cellphone’s destruction. Therefore, the

Commissioner did not exceed the expansive grant of authority within the CBA by admitting and considering this evidence.

C. The Commissioner Had the Authority to Determine That Brady’s Misconduct Amounted to Conduct Detrimental to the NFL.

The Association and the NFL collectively bargained for the Commissioner to penalize a player for “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” R. at 398. Article 46 does not define “conduct detrimental” and does not prescribe a maximum penalty for such a violation. See R. at 398-399.

However, the CBA’s standard NFL player contract states that a player can be found guilty of conduct “reasonably judged by the League Commissioner” to be detrimental to the game of professional football. R. at 406. Further acknowledging the Commissioner's authority, the standard NFL player contract states that, for conduct detrimental to the League, the Commissioner has the authority “to fine [a]

Player a reasonable amount; to suspend [a] Player for a period certain or indefinitely; and/or to terminate this contract.” R. at 406-07. The Association

14 bargained for this expansive grant of authority, thus allowing the Commissioner to make the final determination that Brady engaged in conduct detrimental to the league.

The Association’s possible concern that the Commissioner was “evidently partial” when making this determination is irrelevant.4 “The parties to an arbitration choose their method of dispute resolution, and can ask no more impartiality than inheres in the method they have chosen.” Merit Ins. Co. v.

Leatherby Ins. Co., 714 F.2d 673, 679 (7th Cir. 1983). Under the CBA, the

Association and the NFL collectively bargained for their method of dispute resolution and agreed that the NFL Commissioner could, at his discretion, sit as the arbitrator. R. at 398-99; see Williams v. Nat’l Football League, 582 F.3d 863, 885

(8th Cir. 2009) (holding that the Association bargained for the Commissioner to sit as the arbitrator, at his discretion, and that intent must be respected).

D. The Commissioner Had the Authority to Affirm a Suspension for Conduct Detrimental to the League.

The Association and the NFL collectively bargained for the Commissioner as the arbitrator to have the authority to affirm, vacate, or change the penalty originally imposed based on his interpretation of Article 46. R. at 399. When parties agree to arbitrate their disputes concerning violations of a CBA, they bargain for the arbitrator to determine remedies for the violations. See Misco, 484 U.S. at 38.

Moreover, this Court has held that courts “have no authority to disagree with [the

4 Although the question of whether the arbitrator was “evidently partial” was not briefed before the Second Circuit, that court discussed the issue and the Association may attempt to raise it before this Court. See Brady, 820 F.3d at 548.

15 arbitrator’s] honest judgment” with respect to the appropriate remedies. Id. Article

46’s available remedies include disciplinary penalties – i.e. fines and suspensions.

See R. at 398-99. Moreover, Article 46 does not prescribe a maximum penalty for conduct detrimental. See R. at 398-99. Thus, the Commissioner’s affirmance of the four-game suspension was wholly within his authority to decide the appropriate penalty.

II. Vacatur Is Rarely Appropriate for Arbitral Decisions – And This Case Is Not an Exception.

Tom Brady is an exceptional quarterback. Even after missing four games of the 2016 season, he is on the short list of league MVP candidates.5 Unfortunately for Brady and the Association, however, the arbitral decision at issue here is not exceptional. Rather, the arbitral decision is an exceptionally ordinary one. The decision is merely another in a long line of professional sports arbitrations governed by collective bargaining agreements.6

Brady and the Association argue that the arbitrator failed to address critical provisions of the CBA and that, as a result of this failure, vacatur is warranted.

This argument fails for three primary reasons: (1) legal precedence requires courts to accord an extraordinary level of deference to an arbitrator’s award; (2) the

Commissioner addressed the critical provisions of the CBA in this case; and (3) even

5 Bill Barnwell, NFL midseason awards: Can Tom Brady really be the MVP already? (Nov.7, 2016, 7:30 AM), http://www.espn.com/nfl/story/_/page/Barnwellx161107. 6 See Ryan T. Dryer, Beyond the Box Score: A Look at Collective Bargaining Agreements in Professional Sports and Their Effect on Competition, 2008 J. Disp. Resol. 267 (2008) (discussing how Major League Baseball, the National Basketball Association, and the National Football League each have collective bargaining agreements that provide for dispute resolution via arbitration).

16 if this Court finds that the arbitrator did not address an arguably critical provision, vacatur is not warranted.

A. Legal Precedence Does Not Recommend Vacatur.

Because the Commissioner acted within the scope of his authority, this Court must determine whether the award “draws its essence from the agreement” or whether the arbitrator “dispense[d] his own brand of industrial justice.” See Brooks

Drug Co., 956 F.2d at 25; Enter. Wheel & Car Corp., 363 U.S. at 597. At this second step, the arbitrator’s decision is entitled to substantial deference. See Chicago

Typographical Union No. 16 v. Chicago Sun-Times, Inc., 935 F.2d 1501, 1505 (7th

Cir. 1991) (finding that the role of the court is severely limited in reviewing an arbitral decision). After all, “[i]t is the arbitrator’s construction which was bargained for; and so for as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different than his.” Enter. Wheel & Car Corp., 363 U.S. at 599; accord Oxford Health Plans LLC, 133 S. Ct. at 2071 (“The arbitrator’s construction holds, however good, bad, or ugly.”).

This backdrop is critical. The Court is not at liberty to review the arbitrator’s decision simply because it disagrees with the arbitrator’s factual findings, contract interpretations, or choice of remedies. See Misco, 484 U.S. at 36. The Court is not to apply its “own view of what would be appropriate player discipline.” Nat’l Football

League Players Ass’n v. Nat’l Football League (Peterson), 831 F.3d 985, 993 (8th Cir.

2016). The Court is not to review “whether the arbitrator’s ‘correctly’ construed the

CBA when he reviewed the [initial] decision.” Id.

Rather, the Court should evaluate whether the arbitrator was “even arguably construing or applying the contract and acting within the scope of his authority.”

Misco, 484 U.S. at 37-38. Thus, unless Brady and the Association can provide evidence to overcome the overwhelming deference to an arbitrator’s decision, the decision must stand.

B. The Arbitral Decision Draws Its Essence from the CBA.

While, in narrow circumstances, an arbitrator will dispense his own brand of industrial justice and his decision will fail to draw its essence from the CBA, this case does not support such a finding. See Boise Cascade Corp. v. Paper Allied-

Indus., Chem. & Energy Workers (PACE), Local 7-0159, 309 F.3d 1075 (8th Cir.

2002). This is not a case where the arbitrator “fail[ed] to discuss a probative contract term, and at the same time offer[ed] no clear basis for how he construed the contract to reach such a decision without such consideration.” Id. at 1084; see

Clinchfield Coal Co. v. Dist. 28, United Mine Workers, 720 F.2d 1365, 1369 (4th Cir.

1983) (vacating an award where “the arbitrator fails to discuss critical contract terminology, which terminology might reasonably require an opposite result”).

Instead, this is a case where the arbitrator’s decision “is derived from the agreement, viewed in light of its language, its context, and any other indicia of the parties’ intention,” and thus the decision draws its essence from the parties’

18 agreement. See Boise Cascade, 309 F.3d at 1080 (quoting Johnson Controls, Inc.,

Sys. & Servs. Div. v. United Ass’n of Journeymen, 39 F.3d 821, 825 (7th Cir. 1994)).

The Association primarily takes issue with the Commissioner’s application of the “law of the shop” – arguing that Brady did not have the appropriate advance notice of the prohibited conduct and the disciplinary penalties.7 This argument is grounded in the Association’s belief that the Commissioner should have applied their interpretation of different terms and policies to Brady’s case.

While Boise Cascade and other decisions do open the door for questioning arbitrator interpretations that are wholly devoid or deficient of a key term or policy, such a blatant deficiency is not present here. See generally Boise Cascade, 309 F.3d

1075; see also Clinchfield Coal, 720 F.2d 1365. It is not necessary for the

Commissioner to apply every term and tangential policy to Brady’s case in order to issue a decision that draws its essence from the parties’ CBA. Because the

Commissioner applied – and resolved ambiguities within – the appropriate terms and policies here, this Court should affirm the Second Circuit’s decision.

7 The “law of the shop” is not a term that is present in the CBA. Consequently, on a surface level, this Court could dispense with the argument that the award should be vacated because the Commissioner failed to properly address the law of the shop as void ab initio because “law of the shop” is not a contract term (much less a probative or critical one). That said, however, courts have acknowledged that “[t]he essence of the CBA is derived not only from its express provisions, but also from the industrial common law.” Bureau of Engraving, Inc. v. Graphic Commc’ns Int’l Union, 164 F.3d 427, 429 (8th Cir. 1999); see Warrior & Gulf Nav. Co., 363 U.S. at 581–82. (“[T]he industrial common law – the practices of the industry and the shop – is equally a part of the collective bargaining agreement although not expressed in it.”).

1. The CBA Manifests the Scope of the Parties' Agreement.

When determining whether an arbitrator failed to address critical provisions of the parties’ agreement, the Court must first determine which terms and policies govern the parties’ agreement. The Association argues that this case is like Boise

Cascade, where the arbitrator improperly limited the scope of the parties’ agreement. See generally Boise Cascade, 309 F.3d at 1086. The Commissioner did not impose an improper limitation here.

In Boise Cascade, the arbitrator of a labor dispute determined that a Last

Chance Agreement (“LCA”), rather than the parties’ CBA, governed the dispute.8

309 F.3d at 1079. While the Eighth Circuit agreed that the LCA superseded the

CBA in some respects, the court did not agree that the arbitrator’s inquiry could both start and stop within the four corners of the LCA. See id. at 1082, 1086. The arbitrator needed to consider the parties’ intent in drafting the LCA, as informed by their past practices. See id. at 1086. Simply stated, the court found that the arbitrator artificially restricted the full extent of the parties’ agreement – thus limiting the “essence” he drew from.

This arbitrator-imposed restriction is a critical difference between Boise

Cascade and the instant case. In limiting the dispute to the one-and-half-page LCA,

8 Boise Cascade follows a pretty “typical” labor arbitration. See 309 F.3d at 1077-79. An employee, who was a member of a union, had a history of difficulties with her employer. Id. Many difficulties centered on excessive tardiness and absences, which led to another LCA that is not the source of the current controversy. Id. The conduct leading to the instant LCA, however, was the employee’s arriving to work with a blood alcohol content of 0.28 – nearly three times the legal limit. Id. After the employee committed multiple additional infractions, the employer terminated the employee pursuant to the employer's unwritten attendance rules. Id. The union appealed the decision to binding arbitration as provided by the CBA. Id.

20 the arbitrator in Boise Cascade limited the scope of his power and the reasonableness of his interpretation. Id. Here, the CBA unquestionably applies and it gives the broadest grant of power to the Commissioner. See Brady, 820 F.3d at

537 (“Nor does the Association dispute that the Commissioner was entitled, under

Article 46, to determine that Brady’s [conduct] was ‘conduct detrimental’ worthy of a four-game suspension.”); see also R. at 398. While the Association wants to question the award “because the Commissioner failed to make findings as to the applicability or interpretation of the Player Policies,” such a question is not appropriate. Id. at 538.

In part, the question is not appropriate because the Player Policies are not the governing documents in this case.9 Beyond that, however, the NFL’s Player

Policies do not contain a specific provision that would apply to Brady’s conduct, so this cannot be a case where the “specific controls the general.” See R. at 425 et seq;

R. at 33.

The Player Policies’ provisions regarding equipment violations do not mention “tampering” or “ball” or “deflation.” See R. at 425 et seq. The Player Policies also do not mention anything regarding destruction of evidence or lack of compliance in an investigation. See R. at 425 et seq. As a result, it would be a reasonable interpretation to disregard the Players Policies completely – and it

9 As aforementioned, the CBA governs, the Player Policies do not. Indeed, the Association agreed that the Player Policies are not relevant to this controversy during the arbitration. As the Second Circuit commented, “[t]his change of position is itself grounds for rejecting the Association’s argument [that the Player Policies apply].” Brady, 820 F.3d at 538–39 (“During arbitration, the Association disclaimed the applicability of the Player Policies, saying ‘we don’t believe this policy applies either, because there is nothing here about the balls.’”).

21 would certainly be possible to have an interpretation that draws its essence from the CBA without explicit reference to the Player Policies.10

2. The Commissioner Resolved Ambiguities Within the CBA.

Another important difference between the instant case and cases where an arbitrator improperly limited the parties’ agreement turns on recognition of ambiguity. For example, in Boise Cascade, the arbitrator opted for an extremely narrow construction of a provision that did not evince the parties’ intent or acknowledge a potentially outcome determinative ambiguity. See 309 F.3d at 1081-

84. Here, however, the Commissioner recognized – and worked to resolve – the ambiguity of “conduct detrimental” and the notice issues surrounding Brady’s discipline. See Final Decision on Article 46 Appeal of Tom Brady at 14-16.

Boise Cascade suggested that the arbitrator should have exercised a broader interpretation of the words in the agreement in order to fully effectuate the parties’ intent. See 309 F.3d at 1086-87. Yet in this case, the Association argues that the arbitrator should have exercised a narrower interpretation that would appear – in its view – more consistent with policies that are not even at issue (the Player

Policies). See R. at 88. This argument does not attempt to fully effectuate the parties’ intent under the CBA, which is the heart of Boise Cascade. Moreover, in working through the ambiguities, it cannot be suggested that the Commissioner simply stated an issue without examining it. See Clinchfield Coal, 720 F.2d at 1369

10 See discussion infra Section II. C.

(vacating an award where an arbitrator simply stated an issue without discussing it, thus failing to discuss critical contract terminology altogether).

This case is analogous to Gas Aggregation, where the Eighth Circuit held that it was inappropriate to vacate an award when no controlling contractual language existed and the arbitration panel weighed the evidence in order to discern the appropriate damages. Gas Aggregation Servs., Inc. v. Howard Avista Energy,

LLC, 319 F.3d 1060, 1067 (8th Cir. 2003) (applying Boise Cascade and finding that, unlike Boise Cascade, the arbitration panel resolved the necessary contractual gaps). As in Gas Aggregation, no unambiguous term exists in the CBA that outlines the precise penalty the Commissioner should impose given Brady’s unique misconduct. See id. Thus, the Commissioner had to make his own determination of the appropriate penalty for Brady’s conduct detrimental.

Indeed, the intent of the CBA is for the Commissioner “to decide what constitutes conduct detrimental, to determine whether a player has engaged in conduct detrimental, and to determine and impose appropriate discipline if he finds that a player has engaged in conduct detrimental.” Final Decision on Article 46

Appeal of Tom Brady at 5. The intent of the CBA is not that the Commissioner outline all the possible types of detrimental conduct in the Player Policies and then go to the Player Policies to determine what a unique action was most akin to – and ensure the determination is in line with what the Association would want. Yet, this is the intent the Association would have the Court read into the CBA. That intent is too narrow and is incorrect.

As required by the actual language of the CBA, the Commissioner decided each aspect of conduct detrimental here. Notably, in his determination, the

Commissioner reiterated how Brady’s conduct was uniquely detrimental to the

League and he detailed the differences between Brady’s conduct and the conduct of multiple other NFL players. Final Decision on Article 46 Appeal of Tom Brady at

14-16. The Commissioner also concluded that Brady “had more than adequate notice” that he could be suspended for his conduct here. Id. at 16.

In analyzing “conduct detrimental,” the Commissioner constructed the term, just as the parties bargained. In fully explaining his reasoning behind Brady’s penalty and the adequacy of notice given to Brady, he gave the parties more than bargained. Thus, the argument that the Commissioner did not fully effectuate the parties’ intent is without merit. “It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” Enter. Wheel & Car Corp., 363 U.S. at 599.11

11 Case law from various jurisdictions supports the idea that when an arbitrator is interpreting ambiguous terminology or when the agreement is susceptible to the arbitrator’s interpretation, then the decision should not be vacated. Sinai Hosp. of Baltimore, Inc. v. 1199 SEIU United Healthcare Workers E., 65 F. Supp. 3d 440, 448 (D. Md. 2014), appeal dismissed (Mar. 25, 2015) (refusing to vacate an award where a provision is inherently vague and ambiguous, because “it can hardly be argued that the arbitrator's conclusion contradicted the ‘clear’ language” and because “the arbitrator employed the discretion created by the penalty clause to determine the appropriate penalty for the situation at hand”); Spiska Eng’g, Inc. v. SPM Thermo-Shield, Inc., 730 N.W.2d 638 (S.D. 2007) (holding that vacatur was not warranted when an employer failed to establish that the agreement was “plain, unambiguous, and not susceptible to the arbitrator’s interpretation” or that the arbitrator’s interpretation was irrational).

3. Inconsistencies Among Prior NFL Arbitral Decisions Are Not Fatal.

As discussed, the Commissioner addressed notice and conduct detrimental in his award and in doing so was at least “arguably construing or applying the CBA.”

Misco, 484 U.S. at 37-38. This alone means any argument of inconsistency is irrelevant, however, the argument of inconsistency is also incorrect. The Association suggests that the Commissioner did not follow the precedent set forth in prior NFL arbitrations regarding notice and the applicability of the other policies. But this argument ignores the fact that the arbitrator has no duty to follow arbitral precedent and the fact that prior NFL decisions are distinguishable.

The law requires deference to the arbitrator’s consideration of the law of the shop. Local Union No. 135 of United Rubber, Cork, Linoleum & Plastic Workers of

Am. v. Dunlop Tire & Rubber Corp. of Buffalo, N.Y., 391 F.2d 897, 900 (2d Cir.

1968) (“The labor arbitrator is chosen because the parties presumably believe he has special knowledge of the common law of the shop and an ability to weigh

[relevant] considerations.”). The impact of this deference being: the arbitrator has no duty to follow arbitral precedent and if the arbitrator fails to follow precedent, that is not a reason to vacate an award. Wackenhut Corp. v. Amalgamated Local

515, 126 F.3d 29, 32-33 (2d Cir. 1997) (noting that even inconsistent awards will be upheld as long as both are grounded in the CBA); SBC Advanced Sols., Inc. v.

Commc’ns Workers of Am., Dist. 6, 794 F.3d 1020, 1028 (8th Cir. 2015) (“While the two interpretations are not perfectly congruous we cannot say that [the arbitrator’s] interpretation fail[ed] to draw its essence from the CBA.”).

Further, previous NFL arbitral decisions like the Bounty, Rice, and Peterson decisions are each distinguishable and fail to provide a basis for vacatur. As the

Commissioner explained at length, Bounty is “fundamentally different” from this case because the misconduct of the players was largely the result of pressure from coaches and other management representatives. Final Decision on Article 46 Appeal of Tom Brady at 14-15 & n.14.

The Rice decision, which stated that Article 46 discipline should be “fair and consistent” and that players are generally entitled to notice, is not inconsistent with the award. R. at 96. In Rice, the primary issues were that the Commissioner punished Rice twice for the same conduct and that he was retroactively applying a new presumptive penalty for domestic violence. R. at 97-98. Here, the issue is not a double punishment for the same conduct and it does not involve retroactively applying a new presumptive penalty. Rather, the Commissioner determined a penalty for Brady’s unique conduct and determined that Brady had sufficient notice.

Final Decision on Article 46 Appeal of Tom Brady at 16-18.

Finally, the Peterson decision, which involved indefinite suspension and a fine after Peterson’s criminal no contest plea to reckless assault of his son, is unpersuasive because the Eighth Circuit overturned the case. Peterson, 831 F.3d

985. At the time the Second Circuit wrote its opinion in the instant case, the

Peterson appeal was pending. Compare Brady, 820 F.3d 527 (decided on April 25,

2016) with Peterson, 831 F.3d 985 (decided on August 4, 2016).

The Peterson district court had vacated the arbitration award because it found that the award violated the essence of the CBA by retroactively applying the same new penalty at issue in Rice. See Peterson, 831 F.3d at 992-93. But the Eighth

Circuit reinstated the award because “[t]he arbitrator relied on the [CBA] and the law of the shop to reach this conclusion.” Id. at 994. The Eighth Circuit noted that the arbitrator addressed and distinguished Rice, explaining that Rice dealt with notice of a second punishment, where Peterson’s punishment was the first. Id.

Similarly, here, the four-game suspension at issue is the first penalty imposed on Brady for his unique misconduct. Thus, any inconsistencies between the

Brady decision and the Rice decision are ill-founded and, if anything, Peterson works in the League’s favor because it does not stand for a harsh interpretation of the law of the shop’s notice requirement. Rather, Peterson reiterates the fact that the Commissioner has extraordinary discretion in determining the appropriate penalty. See id. at 993-95. So much discretion that the Commissioner can discipline in line with a penalty that he developed after the conduct detrimental occurred. Id.

The key is whether the penalty is grounded within the CBA.

C. The Commissioner’s Alleged Omissions Do Not Warrant Vacatur.

Of course, Brady and the Association do not agree that it is possible to have an award that draws its essence from the parties’ agreement without reference to the Player Policies and certain bargained-for penalties – i.e. stickum. Even if the

Court agrees that the arbitrator should have referenced the Player Policies or other

27 penalties that the Court finds more persuasive, such omissions do not change the fact that the Commissioner’s decision can still draw its essence from the CBA.

The alleged omissions are not so critical that they would have necessarily changed the outcome of the arbitrator’s decision. See Clinchfield Coal, 720 F.2d at

1369. And, the allegations start to look like merits-based complaints, which are not allowed when reviewing arbitral decision. Misco, 484 U.S. at 36 (finding that the

Court is not at liberty to review the arbitrator’s decision simply because it disagrees with the arbitrator’s factual findings, contract interpretations, or choice of remedies).

The Association points to the fact that the Player Policies outline some collectively bargained penalties, including “Discipline for Game-Related

Misconduct” and “equipment violations.” R. at 114-15. These provisions give notice that “first offenses will result in fines.” R. at 114-15. Thus, the Association argues that Brady was only on notice that he could be fined for his “equipment violations.”

R. at 114-15.

As mentioned above, however, none of the provisions in the Player Policies apply to Brady’s unique case. See supra Section II. A. 1. Moreover, even if the

Player Policies did contain a provision that applied, the penalties that the

Commissioner outlines in additional policies pursuant to Article 46 are not absolute.

See Peterson, 831 F.3d at 989–90 (outlining that the NFL Personal Conduct Policy does not establish maximum or presumptive punishments). The Player Policies were also “not within the parties’ contemplation at the time they drafted their

28 agreement,” which renders them inapplicable. Boise Cascade, 309 F.3d at 1083-84

(“[The arbitrator] may not rely on outside sources not within the parties’ contemplation at the time they drafted their agreement.”). Thus, the

Commissioner’s “failure” to apply the Player Policies in this instance was not a failure at all. The restriction was likely correct, and at worst it did not limit his ability to issue a decision that draws its essence from the parties’ agreement.

Indeed, the first page of the Player Policies reiterates Article 46’s general grant of authority that “[t]he Commissioner may impose fines and other appropriate discipline, up to and including suspension and banishment from the League, for certain misconduct on the playing field, as well as conduct detrimental to the integrity of or public confidence in the NFL or the game of professional football.” R. at 429. And, lest the Court forget, Brady’s detrimental conduct was not limited to football deflation – it was coupled with a failure to cooperate with the League’s investigation and the destruction of potentially relevant evidence. Final Decision on

Article 46 Appeal of Tom Brady at 14-15.

Throughout his written decision, the Commissioner reiterated the uniqueness of Brady’s case and the multiple facets of Brady’s detrimental conduct. Id. Thus, it is not necessary or obvious that the Commissioner would have come to a different decision in Brady’s case if he had written extensively on all of the equipment violations in the Player Policies. It is entirely within the Commissioner’s purview to hone in on what he considers to be the most applicable – i.e. the parallel of steroid use. See id.

Furthermore, the arbitrator had no obligation to consider each bargained-for penalty in the CBA. Yet, the dissent below asserts that the Commissioner’s decision does not draw its essence from the CBA because the Commissioner did not compare

Brady’s penalty to the bargained-for penalty for use of stickum. Brady, 820 F.3d at

552–54 (Katzman, C.J., dissenting). Even assuming that the Commissioner did not consider this comparison, it does not matter. The sitting arbitrator in a NFL CBA dispute is under no obligation to compare a particular penalty to all other bargained-for penalties – much less to find such a comparison persuasive.

The dissent also opines that it would be immensely useful to have a written decision from the Commissioner mentioning why he did not find the use of stickum to be an analogous and persuasive penalty. Id. at 552-53. While a written decision fully explaining the Commissioner’s reasons for comparing the deflation of footballs to all other potential penalties could be useful, the Commissioner was under no obligation to write such a decision. Indeed, Article 46 makes it clear that the

Commissioner must issue a written decision, but Article 46 does not say that

Commissioner must fully explain his reasoning behind his given penalties. R. at

399. Moreover, the Commissioner did render a written decision in this case explaining why he found a different analogy persuasive. Final Decision on Article 46

Appeal of Tom Brady at 14-16.12

12 Also, as the Second Circuit noted: “Not even the Association finds defect with the award on this point – this argument was never raised by the Association…[w]hile we appreciate that our dissenting colleague might view the penalty meted out to Brady as harsh, we do not believe that view supplies a sufficient basis to warrant vacatur.” Brady, 820 F.3d at 540.

Any attempts to elevate the omission of the equipment violations provision of the Player Policies or the stickum penalty to one “indicative of the award’s overall failure to draw its essence from the CBA” are misguided. Brady, 820 F.3d at 553

(Katzman, C.J., dissenting). The Court is not to apply its “own view of what would be appropriate player discipline.” Peterson, 831 F.3d at 993. Rather, the Court must acknowledge that the Commissioner considered the entirety of Brady’s unique detrimental conduct and then – rightly or wrongly – imposed the penalty he found to be the most just and indicative of the parties’ agreement. In this case, like in so many arbitral reviews before it, “[the] arbitrator’s construction holds, however good, bad, or ugly.” Oxford Health Plans LLC, 133 S. Ct. at 2071.

CONCLUSION

In the NFL, a referee’s ruling on the field must stand unless, upon further review, incontrovertible visual evidence exists to support overturning the call.

Equally here, the Commissioner’s decision must stand because, upon further review, he arguably construed his authority and his decision drew its essence from the collective bargaining agreement.

For the foregoing reasons, Respondents respectfully requests that this Court affirm the decision of the United States Court of Appeals for the Second Circuit.

Respectfully Submitted, /s/ Team No. 31 Team No. 31 Counsel for Respondents