Monday, July 20, 2015

Deflategate - Impact Of Appellate Process goes Far Beyond Brady, Patriots

Roger Goodell is a despot.

Despot, tyrant, absolute monarch - label him as you will, for they all work. As the commissioner of the National Football League, Goodell has adopted a policy of, as Plato put it, "One who rules without law, looks to his own advantage rather than that of his subjects, and uses extreme and cruel tactics - against his own people as well as others."

Though it may seem to some that Goodell bases his rulings regarding punishment according to public opinion, Goodell actually uses public opinion as a mechanism to build his own power under the guise of satiating public outcry toward a certain subject, riding the wave of sentiment until the wave breaks on the shores of despotism, ruling with an iron fist that many do not recognize until, alas, it is too late to do anything about it.

Future Hall of Fame quarterback Brett Favre experienced this form of authority at the start of Goodell's reign, as he was fined $50,000 for refusing to hand over his private cell phone during a league investigation regarding a sexual harassment case against him.

Former Baltimore Ravens' running back Ray Rice also felt the sting of Goodell's whip.  Sentenced to a two game suspension for hitting his wife and knocking her cold in a casino elevator, public rage after a video of the incident emerged forced the commissioner to re-examine his ruling, swiftly suspending Rice indefinitely...

...but this wasn't just happenstance.  Goodell told the public that he hadn't seen the video before it was released, and that two-games was the precedence set forth for domestic violence cases. Then, stating that he was appalled and sickened by the video evidence, rode that wave of public sentiment to impose the closest thing to a death penalty as he legally could, setting an entirely new and broad precedence that gave him far-reaching authority in sentencing.

The proof of this comes in the cases of both Adrian Peterson and Greg Hardy, where Peterson was also suspended indefinitely for using a switch to discipline his own child, then Hardy for the 2014 season for slugging his girlfriend, then the commissioner revisited the case once more evidence was brought to light this past off season, using that to suspend the talented defensive end for 10 more games of the upcoming 2015 season.

All of these incidents fall under the "Conduct detrimental to the League" tab of the league's punishment manual, and as egregious as these crimes were and are, precedence has to have a play in sentencing to provide guidelines and limitations on the power demonstrated by the commissioner, or else the entirety of the punishment system becomes no more than the whim of the tyrant.

Federal court rulings against Goodell in these matters have had little effect on his mindset, as he has continued to rule excessively against the players under his purview.  Rice had his sentence set aside and is now eligible to play.  Same with Peterson, though Goodell resisted court orders to immediately reinstate the running back and is now facing a contempt of court charge from a federal magistrate.

Hardy's 10 game suspension was reduced to four games by an independent arbitrator, though the defensive end still maintains his stance that he will take his case to federal court to have it set aside - but none of these outcomes have had any bearing on Goodell's decision-making process.

Part of the reason why Goodell has been able to wield so much power over this process is because he has adopted the lowest standard of proof in the justice system, and evil thing called a "Preponderance of the Evidence", also known as a "Balance of Probabilities", meaning that to find a player guilty of a deed subject to punishment, all the league has to show is that a player "More likely than not" committed the deed.

In the aforementioned cases, there was video evidence, police reports and eyewitness testimony as to the guilt of the accused - but what happens when there is no video evidence, police reports or eyewitness testimony?

Enter Tom Brady and the New England Patriots.

The so-called "Deflategate" saga has been dissected and over-reported, ad nauseum, and even though all of the evidence in the case is circumstantial at best, an "independent investigator" found that it is
"more likely than not" that Brady had knowledge of Patriots' equipment managers deflating footballs in order to give the team a competitive advantage over the Indianapolis Colts in last season's AFC Championship Game - and Brady was suspended and the Patriots fined and stripped of two draft picks.

Why? Because Goodell finally has a case so ambiguous in nature that to win any sort of victory in the appellate process will set a precedence that will give him unbridled authority to wield that same power over any player or team that crosses him, with only the "More probable than not" standard needing to be satisfied to invoke punishment.

And it's the Players' fault that it even comes down to this.

In 2011, the NFLPA signed off on a Collective bargaining Agreement that gave Goodell absolute power of the discipline of players, something that former Pittsburgh Steelers' receiver Hines Ward opined about shortly thereafter as nothing short of electing a dictator.

"...it should be noted that we (the Steelers) were the only team that voted against it" Ward said of the CBA in an interview given in 2012. "In order to go to the appeal committee, we had to go right back to Roger Goodell. So that was one of the big things we voted no against because we felt like it was going to be unfair."

Many viewed Ward's statements as being unjustifiably paranoid, being as the 31 other teams voted to ratify the agreement - at least three of which probably wished they had paid a little closer attention to the small print, a group that includes the Patriots - but how was anyone to know that Goodell would go right out and start abusing his new-found power?

Ward's remarks were in response to the "Bountygate" controversy and how the Saints players and coaches were bullied by the league's vast legal network and subsequently were railroaded by the appellate processes that essentially made Goodell judge, jury and executioner when it came to players indiscretion, either real or imagined.

Of course, Ward was speaking in regard of Article 46 of the CBA, specifically section 2, subsection (a) which states, "...the commissioner may serve as hearing officer for any appeal under Section 1(a) of this Article at his discretion." There's a bunch of other mumbo-jumbo stated before that sentence, which the sentence rendered void at the discretion of the commissioner...

...and while the current Collective Bargaining Agreement can not be addressed until the end of the 2021 season, the NFLPA and Brady himself can put serious limitations on the commissioner's breadth of punitive measures by being successful in petitioning the federal court to set aside Brady's suspension.  The caveat, however, is that if Brady and his legal team are unsuccessful, the door is open for the commissioner to cement his authority, the precedence set making it extremely unlikely that another player could successfully petition for such in the future.

The same thing is true if Brady just accepts whatever the ruling is to avoid a distraction for the team, as some Patriots' beat writers are suggesting.  If Brady were to accept Goodell's ruling - assuming it's anything short of complete exoneration - it will be the equivalent of a coronation for Goodell, and his reign of unreasonable terror can go by, unabated, for another six years.

But, why Brady?  Why not Rice or Peterson or Hardy?

Because the differences between Brady's case and the others is that the Commissioner had indisputable evidence of the other three beating defenseless women or children, and all Goodell has against Brady is a report from a clearly biased "independent investigator" that has had so many holes blown in it that it resembles the partitions at an adult video arcade.

While a victory by Brady doesn't guarantee that the commissioner will cease in leveling his unreasonable and far-reaching punishments, but it will set precedence that in ambiguous cases with merely circumstantial evidence are to be held to a higher standard of proof and that Goodell will be constrained to abiding by Article 46, Section 2(a) of the CBA...

...which requires the NFL and NFLPA to designate a pool of independent hearing officers that both the league and the players' counsel must agree upon in a case-by-case basis.  This didn't happen in Brady's appellate process, as Goodell invoked his right as commissioner to designate himself as the hearing officer - and the only way that is going to change is if the courts also find in Brady's favor on the stipulation that the commissioner is not an unbiased hearing officer, given that he is the person that dishes out the punishment to begin with.

In Brady's favor is a ruling in the State of Missouri Supreme Court that the commissioner is incapable of being objective in such an arena, declaring unconscionable Section 8.3 of the NFL's Constitution and Bylaws that state the "Commissioner shall have full and complete and final jurisdiction and authority to arbitrate any dispute between any player, coach, and/or any other employee of the team." by stating that "In effect, the Commissioner is required to arbitrate claims against his employers."

And while that doesn't necessarily fall neatly into this case, it does give relevancy to the NFLPA's claim because it also potentially gives the NFLPA a "hammer for challenging in court the ability of the commissioner to continue to serve as the arbitrator over claims brought by players."

This is why Brady absolutely must fight this punishment all the way to the end.  Forget that Brady could miss four games.  Forget that the Patriots stand to lose two draft picks - those are small potatoes in the grand scheme of Goodell's power play, and there may never be a better time to challenge the Commissioner's dominion over the teams and players that the CBA allows in its language.

It's either that or wait for six years when the NFLPA's contempt for Goodell is such that common ground on a new Collective Bargaining Agreement will be so narrow that a work stoppage will be sure to occur, with the very future of the NFL at stake.


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