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Judge Rules NFL Was 'Fundamentally Unfair' To Tom Brady


Joining me now is Alan Milstein. He's a lawyer who's been following this story closely. He's actually litigated in front of Judge Berman in another case against the NFL.

Welcome to the program.

ALAN MILSTEIN: My pleasure.

SIEGEL: The National Football League intends to appeal Judge Berman's decision to the Second Circuit. Do you think the league has a chance of overturning today's result?

MILSTEIN: No, I don't think they have any chance whatsoever. The judge was very careful to write what we call a bulletproof opinion. I mean, he could have decided that Goodell was a partial arbitrator, which would've given the NFL a good chance to appeal. But instead, he just held that - the hearing that was held was fundamentally unfair because Brady wasn't allowed to call the witness that he needed to call and didn't have access to the important documents.

SIEGEL: Yeah, who, by the way, was the witness that Brady wasn't allowed to call?

MILSTEIN: Jeff Pash, who is the person who edited down the supposed independent investigation report.

SIEGEL: Now, you have said on the record before today that Brady would win, the four-game suspension would be vacated by the judge. Why were you so confident of that?

MILSTEIN: Well, for one, Goodell doesn't have a very good record in having his arbitrations upheld. And two, it just seemed that this was an arbitration that just wasn't fair, that the findings didn't comport to the evidence, and that certainly the penalty didn't comport to what the findings were.

MILSTEIN: Does this result weaken Goodell as commissioner so much so that other players might see they have a better chance of circumventing punishments by taking their cases to court?

MILSTEIN: That's certainly possible, but really what happened here is that the NFL was told, if you're going to have these kinds of arbitrations then hold them in a fair manner. So if in the future the NFL does just that, players may not be able to so easily overturn those awards.

SIEGEL: Judge also said that even if Tom Brady had had general knowledge of other people who were deflating the football, even if that knowledge came from phone calls or texts on a phone that he then destroyed, none of that would have nailed him, none of that would've justified the punishment that he received. Is that how you read it?

MILSTEIN: I don't read it quite like that. I mean, when a judge looks at an arbitration decision, he or she is not supposed to essentially substitute his conclusion as to the facts for that of the arbitrator. So the judge more or less accepted the factual findings of the arbitrator, who in this case was Roger Goodell, but he said, those facts were based on an arbitration that was fundamentally unfair so I'm going to vacate the award. And, you know, it's an important decision well beyond a few deflated footballs. You know, all of us have signed contracts probably once we didn't even read that has arbitration clauses in them. And really what this decision says is, even if you have to submit to an arbitration as opposed to going to court, you're entitled to a fair hearing.

SIEGEL: Mr. Milstein, thanks for talking with us today.

MILSTEIN: My pleasure.

SIEGEL: That's lawyer Alan Milstein, a litigator who spoke to us from Mount Holly, N.J. Transcript provided by NPR, Copyright NPR.