Deflategate is a Legal Vacuum

by Rich Cassidy on May 3, 2016

 By Jeffrey Beall (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsLast week the Second Circuit Court of Appeals[1] upheld the ruling of NFL Commissioner Roger Goodell to suspend Tom Brady for four games because of his alleged role in the Deflategate scandal. It is a decision that should have been no surprise to lawyers who understand the law of arbitration.

That is because — as a friend of mine who is a judge says – the root word of arbitration is arbitrary. Arbitration was designed for disputes just like this one: cases in which getting the dispute resolved is more important than getting the perfect result. The idea is that a trusted third party, usually one with a deep understanding of the context within which the dispute arose, will decide the issue in quick, inexpensive, and final proceeding.   For example, a very early royal ordinance establishing a form of arbitration, described it as follows:

We ordain and establish that some certain loyal and discreet man living in London shall be appointed a judge from among the merchants to recover their debts . . . and give them a quick measure of justice from day to day . . . under a charter granted to merchants to decide questions which arise among merchants and in accord with the law merchant.[2]

All the controversy suggesting that Commissioner Goodell made the wrong decision misses the point. Right or wrong, the Players’ Association and the owners bargained for just what they got: That the League Commissioner would resolve disputes of this nature based on his own judgment.

Sure, it seems unusual by the usual standards the legal process that Goodell commissioned the investigation, evaluated its results, ordered that Brady be disciplined and then decided the “appeal” from his own decision.

But that was the deal the collective bargaining agreement established and there is a long history of applying that deal to such disputes.

Brady is not satisfied. It appears that he plans to take the unusual step of seeking en banc review of the Second Circuit decision. That is a review of the 2-1 decision of the panel by all 13 of the active judges of the Second Circuit. In that Circuit, such a review is very rare. It’s so rare that one can’t even say what the odds of such a review actually changing the panel decision. There is almost no experience to measure it by.

The fact that Brady and the Players’ Association have hired one the most highly reputed appellate lawyers in the country, former Solicitor General Theodore “Ted” Olson — of Bush v. Gore and Hollingsworth v. Perry fame — is not likely to change things.

Nor is it likely that an application seeking to have the U.S. Supreme Court review the case would be successful.

The issues argued in the Circuit, which are the limits of what can be raised in en banc or Supreme Court review, don’t present any meaty legal questions that are likely to be taken seriously in either forum.

In the Circuit, Brady and the Patriots made three basic arguments: that the evidence did not support Goodell’s ruling, that Goodell should not have been both prosecutor and judge, and that the punishment was unprecedented when compared to prior cases.

There are open legal questions about the law of arbitration. These issues are not among them. The fact is that, in the words of Gertrude Stein, “there is just no there there.”[3]

Here is my prediction: The Circuit will deny en banc review, and Brady and the team won’t get Supreme Court review. And if somehow they do, they will lose.

If Brady gets en banc review or seeks Supreme Court review, to avoid having to serve his suspension at the start of the next season, Brady needs a stay pending further review. If he gets a stay, it could prove a mixed blessing.  An unfavorable decision could arrive at almost any time. Perhaps, at a very inconvenient time. If a stay is denied, the further review becomes a mere matter of money.

In the end, I think the case will serve as an object lesson for the public and for many lawyers. Arbitration awards are nearly immune to judicial review. Right or wrong, arbitration awards nearly always bring disputes to an end. That is the idea.

Rich

[1]National Football League Management Council v. National Football League Players Association, (Docket Nos. 15‐2801 (L), 15‐2805 (CON), April 25, 2016). Read the decision here.

[2] Prynnes, Animadversions (1669) 23, cited at Earl S. Wolaver, The Historical Background of Commercial Arbitration, Univ. Penn. L. Rev. 132, 136 (1934).

[3] Gertrude Stein, Everybody’s Autobiography (1937), ch. 4.

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Should Your Law Firm Have a Social Mission?

by Rich Cassidy on April 1, 2016

That question has been running through my mind anew since I happened to pick up the March issue of Inc. Magazine last weekend. The cover story, Why Shark Tank’s Kevin O’Leary Wants You to be Evil,” pits traditional entrepreneur O’Leary against Adam Lowery, who is described as co-founder and chief global sustainability officer of Method, a company that makes chemical-free household products.

O’Leary’s arguments are simple and straightforward: Business is about making a profit. It is a tough, competitive world and to protect the business: “You have to be willing to fire your mother.” The more money you make, the more you and your shareholders have to give away to do good works if that’s what you like. We have laws and regulations to deal with corporations that are bad actors.

Lowery’s contention is not so simple. He argues that integrating societal and environmental concerns “actually produces better financial outcomes.” It’s suggested that consumers buy on the basis of value and values.

I have represented and been in adversarial relationships with many businesses that claim a social mission.  In my experience is that they have highly variable commitments to the mission. Some are willing to live or die for the mission. For some, it is really just a marketing strategy.

Lawyers and law firms have a long tradition of commitment to broader concerns than simple profit. Perhaps because lawyers have a virtual commercial monopoly on access to the judicial branch of government, many lawyers feel an obligation to help provide legal services for those cannot afford them.

Of course, that commitment is by no means universal. Some lawyers aren’t in a position to help, and many feel no obligation whatsoever.

But lawyers are in business too, and O’Leary’s comments about the toughness of a competitive world are not to be ignored. The old days of lawyers as gentlemanly professionals who need not worry about the bottom line are long gone, if they ever were.

I write from real experience. A social mission has been part of our shareholders’ agreement for the entire 27 year of my law firm’s existence. Our mission has included a primary emphasis on meeting the needs individuals and a commitment to furthering social justice and improving the law.

But writing such values into an agreement does not make them live. The fact is that our firm’s commitment to those values has waxed and waned with the lawyers who have been members of the firm.

One lesson I learned is that if you want to make the mission real, commitment to it must be a recruiting tool and limitation. If you take on lawyers who don’t share it, you set your firm up for basic conflict.

Here is where I come out. A social mission is not for every law firm. It’s possible to “do well by doing good,” but one must be willing, at least at times, to make some real sacrifices to make it happen. On the other hand, if you have the wisdom to know that you can’t represent everyone, a social mission can prove helpful, at least by aligning your marketing and your work to be consistent with the interests of the clients you wish to represent.

Most important, a least for me, is doing work that is inherently satisfying. Life is too short to spend all my time just pursuing dollars.

I am characteristically an underdog rooter. If I sit down in front of the television and find a sporting event underway, I know which team I’ll be cheering for. The one that is behind.

My practice has largely reflected that value, and even if it has cost me money, I wouldn’t
have it any other way.

Rich

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Hon. John L. Pacht: John, Congratulations, Farewell and Good Luck!

March 12, 2016

“For everything, there is a season.” –Pete Seeger On Friday, one of our founders at Hoff Curtis, John L. Pacht, left us as Vermont Governor Peter Shumlin swore him in as a Superior Judge. Our Superior Court Judges are generalist trial court judges, but Governor Shumlin appointed John to fill a judgeship recently funded to help […]

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Truth is Stranger than Fiction

January 4, 2016

Review: John Surratt: The Lincoln Assassin Who Got Away (Seattle, WA: Bennett & Hastings Publishing 2015) 361 pages, $18.95 “Truth is stranger than fiction, but it is because Fiction is obliged to stick to possibilities; Truth isn’t.” ―Mark Twain, Following the Equator: A Journey Around the World (Hartford, CT: American Publishing Company 1897). Certainly, the […]

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The Joys of “To Do” Lists — Wunderlist

December 14, 2015

Organization has never come easily to me. I am focused on the substance of my work and it’s hard to find time and energy for getting and staying well-organized. But not being well organized makes things harder and slower. Many years ago, I went to a time management seminar and learned a lesson that has served me […]

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“Young Mr. Lincoln:” No Jackleg Lawyer

November 9, 2015

“Youngmrlincoln“. Via Wikipedia. Last weekend, I watched a classic lawyer movie, Young Mr. Lincoln. The 1939 film, directed by John Ford, stars a young Henry Fonda as Abraham Lincoln deciding to pursue a career in the law, and trying his first murder case. Lincoln is portrayed as saving the lives of two clients-–a pair of […]

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Why I am a Literalist About the Law

October 23, 2015

Everyone is presumed to know the law. This is a useful — perhaps even an essential — legal fiction. Of course, it is also entirely false. The truth is, no one knows the law. The law is far too massive and far too complex to be held in the mind of any single individual. That […]

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Thank You, Dan Richardson and Thank You, Vermont Bar Association

September 28, 2015

I very much appreciate this award! Thank you,  VBA Immediate Past President Dan Richardson! And thank you, Vermont Bar Association! Rich

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What Does the Future Hold for the American Bar Association?

September 24, 2015

Transitions are occasions for reflection. I’ve been a member of the American Bar Association since I was admitted to the bar in 1979, and since 1999, I’ve served in its House of Delegates. This week, I resigned my seat in the House as the representative of the Vermont Bar Association to focus on my duties […]

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Life is Surprising!

August 13, 2015

Forty-five years ago I was active in Gov. Phil Hoff’s campaign for the U.S. Senate from Vermont. I was in high school.  That summer, I had a job as a bell-hop, that did not start until 3:00 PM. I spent every day from 8:00 AM to 2:45  on the campaign. We lost that race, even though […]

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