NFL 2015 Season - Page 80

"The deference due an arbitrator does not extend so far as to require a district court to countenance, much less confirm, an award obtained without the requisites of fairness or due process." Kaplan v. Alfred Dunhill of London, Inc., No. 96 Civ. 259 (JFK), 1996 WL
640901, at *7 (S.D.N.Y. Nov. 4, 1996).

For example, FAA § I 0 provides that the Court may vacate an arbitral award "where the arbitrators were guilty of ...
refusing to hear evidence pertinent and material to the controversy."

The Court may also vacate an arbitral award "where there was evident partiality ... "

It is the "law of the shop" to provide professional football players with advance notice of prohibited conduct and potential discipline

There is no evidence of a record of past suspensions based purely on obstructing a League investigation.

The Court is fully aware of the deference afforded to arbitral decisions, but, nevertheless, concludes that the Award should be vacated. The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four-game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL Executive Vice President and General Counsel JeffPash; and (C) denial of equal access to investigative files, including witness interview notes.

The Court finds that the NFL's collectively bargained for "Policy on Anabolic Steroids and Related Substances" ("Steroid Policy") is sui generis. It cannot, as a matter of law, serve as adequate notice of discipline to Brady. It also cannot reasonably be used as a comparator for Brady's four-game suspension for alleged ball deflation by others in the first half of the AFC Championship Game and for non-cooperation in the ensuing Investigation. The Steroid Policy is incorporated into the 2014 Player Policies, which sets forth in great detail "testing procedures," "procedures in response to positive tests or other evaluation," "suspension and related discipline," "appeal right," "burdens and standards of proof," and "discovery," none of which has anything to do with Brady's conduct and/or his discipline. See NFL Policy on Anabolic Steroids and Related Substances at 5-16.

The absence of such notice violated the "law of the shop."

Goodell's reliance on notice of broad CBA "conduct detrimental" policy-as opposed to specific Player Policies regarding equipment violations-to impose discipline upon Brady is legally misplaced.

The Court finds that Commissioner Goodell's denial of Brady's motion to compel the testimony of Mr. Pash was fundamentally unfair and in violation of9 U.S.C. § !O(a)(3). Given Mr. Pash's very senior position in the NFL, his role as Executive Vice President and General Counsel, and his designation as co-lead investigator with Ted Wells, it is logical that he would have valuable insight into the course and outcome of the Investigation and into the drafting and content of the Wells Report. It is also problematic to the Court that there was no specification by Goodell as to the ways Pash's testimony would have been "cumulative."

the NFL fairly cannot suggest, without more than the testimony of the NFL's retained counsel, that the edits from Mr. Pash were not significant or that his testimony would have been "cumulative."

Mr. Wells acknowledged that he did not know the content of Mr. Pash' s pre-release edits, and thus there was simply "no reasonable basis for the arbitration panel to determine that ... [the] omitted testimony would be cumulative."

Compounding Brady's prejudice is the fact that, as noted, Paul, Weiss acted as both alleged "independent" counsel during the Investigation and also (perhaps inconsistently) as retained counsel to the NFL during the arbitration.