Commissioner won’t recuse himself from Tom Brady’s appeal

 

NFL Commissioner Roger Goodell made it official Tuesday: He will hear Tom Brady’s appeal of his four-game suspension.

The league suspended the Patriots quarterback for his role in the use of deflated footballs by New England in its AFC Championship Game victory over Indianapolis in January. The players’ union said Goodell should recuse himself from hearing the appeal because he can’t be impartial and could be called as a witness.

But Goodell cited the "integrity of the game" and his "responsibility" under the labor agreement to "serve as hearing officer in any appeal involving conduct detrimental to the integrity of the game."

Goodell wrote to Brady on Tuesday, saying "My mind is open." The appeal will be heard June 23.

"I decline to rewrite our collective bargaining agreement to abrogate my authority and discretion to hear any appeal in a conduct detrimental proceeding," Goodell said in response to the NFL Players Association’s demand that he recuse himself.

"I am not a necessary or even an appropriate witness, much less a `central witness,’ as the NFLPA contends," Goodell added. "Accordingly, there is no basis upon which I could properly be asked to testify in the appeal proceeding, which … is designed to afford Mr. Brady an opportunity to bring new or additional facts or circumstances to my attention for consideration."

The union did not immediately respond to a request for comment.

Brady is going ahead with his appeal even as the Patriots are not challenging the $1 million fine and loss of two draft choices (first-rounder in 2016, fourth-rounder in 2017) the league gave them.

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After the underinflated footballs were discovered during the Patriots’ rout of the Colts, the league hired attorney Ted Wells to conduct an independent investigation. Wells’ findings were released in May, saying Brady was "at least generally aware" of a scheme to illegally deflate footballs in that game. The report also cited Brady’s unwillingness to hand over his cellphone to investigators, which could have limited the evidence they could gather.

Troy Vincent, the NFL’s executive vice president of football operations, handed down the suspension for the first four games of the 2015 season. Then Brady appealed and hired attorney Jeffrey Kessler, who has fought the league — and other professional sports organizations — in labor cases for years.

The full text the NFL’s statement is below:

ARTICLE 46 APPEAL OF TOM BRADY

Re:  Decision on NFLPA’s Motion to Recuse

Our Collective Bargaining Agreement provides that "at his discretion," the Commissioner may serve as hearing officer in "any appeal" involving conduct detrimental to the integrity of, or public confidence in, the game of professional football.  I will exercise that discretion to hear Mr. Brady’s appeal.

I have carefully reviewed the NFLPA’s recusal motion of May 19 as well as Mr. Nash’s response of May 22.  (Neither party requested to be heard on the matter.)  Based on the unambiguous language and structure of the CBA, as well as common sense, I conclude that none of the arguments advanced by the NFLPA has merit.

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First, the NFLPA argues that I may not serve as hearing officer because Mr. Brady’s discipline letter was signed by NFL executive vice president Troy Vincent rather than by me.  I disagree.  The identity of the person who signed the disciplinary letter is irrelevant.  The signatory’s identity does not influence in any way my evaluation of the issues; any suggestion to the contrary defies common sense.  (I note that NFL executives other than the Commissioner have signed disciplinary letters in numerous proceedings in which the Commissioner or his designee later served as hearing officer.  I am not aware of any objections by the Union to that practice.  To the contrary, as Mr. Nash’s letter points out, the Union has confirmed its acceptance of this procedure.)

There can be no dispute that this is an appeal of Commissioner discipline:  As the letter signed by Mr. Vincent explains in its first sentence, "The Commissioner has authorized me to inform you of the discipline that, pursuant to his authority under Article 46 of the CBA, has been imposed upon you …."  I did not delegate my disciplinary authority to Mr. Vincent; I concurred in his recommendation and authorized him to communicate to Mr. Brady the discipline imposed under my authority as Commissioner.

Even if there were a procedural issue raised by the identity of the signatory to a discipline letter that I authorized, no reason or logic — and certainly nothing in the CBA — would support recusal as the remedy.  After all, the CBA provides that "the Commissioner may serve as hearing officer in "any appeal" involving conduct detrimental to the integrity of the game.

Second, the NFLPA argues that recusal is required because it believes that I may be a "necessary" and/or "central" witness in the appeal proceeding.  I have carefully considered this argument and reject its premise.  I am not a necessary or even an appropriate witness, much less a "central witness" as the NFLPA contends.

I do not have any first-hand knowledge of any of the events at issue.  (That fact makes this matter very different from the Rice appeal, in which there was a fundamental dispute over what Mr. Rice told me in a meeting at the league office.)  Nor did I play a role in the investigation that led to Mr. Brady’s discipline.  Furthermore, there is no reasonable basis for dispute — or for any testimony — about authority for the discipline reflected in the letter signed by Mr. Vincent.  The letter itself is clear on this point.  And there is no basis for my testifying about prior instances in which discipline was considered or imposed for similar conduct; if that were the case, the NFLPA could seek my recusal in every conduct detrimental proceeding, directly contrary to our agreement that I have the "discretion" to hear "any" appeal.

Regardless, my knowledge of any underlying facts in this matter would not provide a basis for recusal.  The CBA contemplates such knowledge and expressly provides that the Commissioner may hear and decide "any" appeal of conduct detrimental discipline.

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Accordingly, there is no basis upon which I could properly be asked to testify in the appeal proceeding, which under Article 46 of the CBA is designed to afford Mr. Brady an opportunity to bring new or additional facts or circumstances to my attention for consideration.

Third, the NFLPA argues that recusal is required because I have "prejudged" the matter and cannot fairly evaluate the potential testimony of league staff members.  After carefully considering this argument, I reject it.

The process by which discipline is imposed for conduct detrimental, and by which appeals of disciplinary decisions are heard, has been in place for many years and is well known to the parties. That includes the role of league staff in the proceedings and the likelihood that the Commissioner will have some knowledge of the underlying facts.

When the parties agreed in the Collective Bargaining Agreement to continue the provisions confirming the Commissioner’s "discretion" to hear "any" appeal of a player facing discipline for conduct detrimental, they clearly understood (a) that such appeals regularly involve testimony by league staff about the issues and events in dispute and (b) that if the Commissioner has taken some action against the player for conduct detrimental and given him notice of impending discipline, he necessarily would have reached an initial conclusion about the player’s actions.  Nonetheless, the parties’ agreement that the Commissioner may serve as hearing officer in "any appeal" could not be more clear.  Thus, neither of those two factors can serve as a basis for recusal.

Nor have I "prejudged" this appeal. I have publicly expressed my appreciation to Mr. Wells and his colleagues for their thorough and independent work.  But that does not mean that I am wedded to their conclusions or to their assessment of the facts.  Nor does it mean that, after considering the evidence and argument presented during the appeal, I may not reach a different conclusion about Mr. Brady’s conduct or the discipline imposed.  That is true even though the initial discipline decision was reached after extensive discussion and in reliance on the critical importance of protecting the integrity of the game.  As I have said publicly, I very much look forward to hearing from Mr. Brady and to considering any new information or evidence that he may bring to my attention.  My mind is open; there has been no "prejudgment" and no bias that warrants recusal.

I have considered the cases cited by the NFLPA, Morris, Erving, and Hewitt.  I agree with Commissioner Tagliabue’s reasoning in the Bounty proceeding, in which he denied the NFLPA’s motion that he recuse himself.  Those cases are not applicable in an appeal governed by a collective bargaining agreement, especially one that so clearly reflects the parties’ intentions about the Commissioner’s authority, discretion, and role.  As Commissioner Tagliabue stated:  "No change in the Collective Bargaining Agreements between 1977 and the present day has ever abrogated the sole authority of the Commissioner to preside" in appeals involving discipline for conduct detrimental to the integrity of the game.  This recusal motion, and others like it, represent nothing more than an effort by the NFLPA to renegotiate Article 46 of the current Collective Bargaining Agreement, signed in August 2011.

Because protecting the integrity of the game is the Commissioner’s most important responsibility, I decline to rewrite our Collective Bargaining Agreement to abrogate my authority and "discretion" to hear "any appeal" in a conduct detrimental proceeding.

The motion for recusal is denied. We will proceed with the hearing on June 23, as previously scheduled.