Wednesday, June 1, 2016

AFL-CIO Joining Brady Appeal Raises Stakes, Awareness Of Real Issue

When building a supporting cast around his franchise quarterback, New England Patriots' coach Bill Belichick selects only the finest athletes, with skill sets of which he can formulate a game plan around - the result in 2016 looks like the very definition of the word "Juggernaut" for New England on the field of play, and it's starting to look that way for Brady in the courtroom as well.

On Tuesday, one of the most powerful labor unions in the country backed Team Brady on the legal front, lending it's formidable legal weight to Brady's en banc petition, haranguing the full weight of the Second Circuit Appellate Court to overturn a decision that the court's three-member appeal panel that NFL Commissioner Roger Goodell was within his providence when he suspended the quarterback for four games as a result of his alleged actions during the so-called DeflateGate saga.

But what has been before the courts in past 12 months has had nothing to do with Brady, other than him being the high-profile personality that lends credence to precedence created by the decisions of those courts, the language in the AFL-CIO brief coming very close to accusing the Second Circuit Court of Appeals of perverting well-established precedence.

Forget Tom Brady, this isn't even about him.  At least, not anymore.

Oh sure, Brady being suspended by National Football League commissioner Roger Goodell makes for compelling headlines and rude discontent among fans of the game, but the second that Goodell upheld his four-game suspension in arbitration, the case against Brady was closed and the case against well-known arbitration precedence came front and center.

Why?  Well as several amicus briefs filed in support of Brady in the past week have pointed out, the commissioner upheld Brady's suspension based on evidence not presented in the original investigation and was not considered during the issuance of the penalty - which goes against every rule governing arbitration.
"It is well established that 'an arbitrator is to look only at the evidence before the employer at the time of discharge and, therefore, the correctness of a discharge must stand or fall upon the reason given at the time of discharge' United Paperworkers Int'l Union v. Misco, 484 U.S. 29, 39-40 & n.8 (1987)" - AFL-CIO Amicus Curiae in support of Tom Brady
When Brady was originally suspended way back last spring, it was because the league found that he was "generally aware" of the deflation of footballs by equipment managers - which never would have held up in front of a neutral arbitrator with zero substantial evidence, so Goodell decided that he would be the arbitrator in any appeal...

...shifting the focus mid-stream from Brady's alleged general awareness to a "theory" that "Brady knew about, approved of, and consented to, and provided inducements and rewards in support of a scheme by which, with Mr. Jastremski's support, Mr. McNally tampered with game balls.", and that the Commissioner "made a change that was material." to his final decision.

The Appellate Court's Chief Jusitce, Judge Robert Katzman, provided that nugget in his dissenting opinion in the latest decision in the appellate process last month, when the panel that he served on found for the NFL in a 2-1 decision, reimposing Brady's suspension.

Essentially, the panel's decision set a precedence that it is ok for an arbitrator to change rationale in imposing discipline simply to avoid having his initial decision scrutinized, which seems particularly relevant in a case where the arbitrator is also the person who metes out the punishment that is being appealed, something that the AFL-CIO brief makes very clear:
"The substantiality of the Commissioner's shifting rationale for Brady's discipline serves as strong evidence that the Commissioner was not acting as a neutral arbitrator considering an appeal at all, but rather as an employer seeking to justify his own initial disciplinary decision.  The panel therefore erred in extending deference to the Commissioner's decision."AFL-CIO Amicus Curiae in support of Tom Brady
This decision impacts not just Brady, not just the NFL nor the NFLPA, it sets a high-profile standard that completely ignores precedence and sets a standard that could have far-reaching effects on how unions protect the rights of the workers under their umbrella - and in this particular case, the standard set is in favor of employers terminating and otherwise punishing workers arbitrarily and on a whim... to such things as moodiness and malice and spite.  The AFL-CIO recognizes the potential impact on labor laws and is getting involved, hoping that their reputation, stature and expereince in cases of labor law will help sway the full 13 members of the Appellate Court to hear Brady's appeal.

Insomuch as Brady is concerned, the union has bigger fish to fry than fighting a mere four-game suspension to an athlete, but have recognized the case as having a far-reaching effect on defending the rights of workers all over the world, making it close to impossible to win an arbitration case if the arbitrator is allowed to change the conditions of the punishment on the fly to serve the needs of the employer.

It has always been the National Football League Players Association's stance that Brady was treated unfairly by the disciplinary and arbitration processes - but in the grand scope of the really real world, a sports league union is pretty small potatoes compared to a union dedicated to preserving the rights of the blue collar working man, who is just trying to make ends meet and to put dinner on his family's table.

As such, their interest in protecting the rights of the nearly thirteen million workers under their collectively bargained security will hopefully carry more weight with the court, who in some of their remarks in the majority decision seemed to want to chide the parties for bringing such a frivolous suit before them.

But the AFL-CIO has reminded them in their brief that the actions of the Commissioner could potentially speak for all of their clients, and that it has been and always will be about setting precedence in matters of labor law - which is far from frivolous.

Look, we all know that DeflateGate is a sham.  We all know that Goodell acted unfairly toward Brady and the Patriots, leveling standard-setting disciplines on the player and team - but none of that matters.  There is a bigger issue at hand here, and big labor is going to ride Brady's coattails to gain a measure of comfort for their clients that the courts took from them in siding with the NFL.

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