The lead NFL attorney in Tom Brady's case against the league sent a letter Monday to Judge Richard Berman in response to a bid by the NFL Players Association to overturn commissioner Roger Goodell's four-game suspension of the Patriots quarterback.
Attorney Daniel Nash's three-page letter, a copy of which was obtained by Newsday, was a response to a list submitted last week by NFLPA attorney Jeffrey Kessler citing 19 cases from the Second Circuit court in New York in which arbitration decisions were overturned.
The NFLPA has asked Berman to vacate Goodell's appeal decision in which he upheld an initial four-game suspension of Brady in connection with his alleged participation in a plan to purposely deflate footballs used in the first half of the Patriots' 45-7 win over the Colts in the AFC Championship Game on Jan. 18.
"These cases confirm that courts vacate arbitration awards only in extraordinary circumstances, none of which are present here,'' Nash wrote. "In every case, the NFLPA submitted to show that a so-called 'violation of the essence of the collective bargaining agreement' justifies [vacating], unlike here, the arbitrator ignored an express term in the CBA or based the award on some concept completely outside of the CBA.''
Berman has ordered that Brady, Goodell and their lawyers appear in his court next Monday. He is hoping the sides can reach a settlement, although there is no indication that a compromise is forthcoming. Absent a settlement, Berman said he hopes to rule by Sept. 4 whether to overturn or uphold the suspension. The Patriots' first game is Sept. 10 against the Steelers.
Nash cited several Second Circuit cases in which the arbitration awards were overturned, but concluded the cases did not bear any resemblance to the Brady case.
"All of the cases cited by the NFLPA in support of its evident partiality argument involve neutral arbitrators who, for instance, failed to disclose conflicts of interest.'' In Brady's case, the NFL argues that Goodell is given explicit authority by the CBA to hear appeals.
Nash also pointed to the NFLPA's contention that the league failed to provide certain documentation to the union as part of the case. That included the NFL's decision not to make league attorney Jeff Pash, a co-author of league-appointed attorney Ted Wells' report about the Patriots' actions surrounding the AFC title game, available to testify, although Nash's letter does not mention Pash by name.
"In only one case cited by the union where an award was vacated based on the arbitrator's refusal to allow a witness to testify, that witness was the 'only person who could provide crucial testimony' that was 'pertinent and material' to the key issue in the case.''
Nash testified at a hearing last week in open court that Pash's testimony during the appeal was not considered necessary, although Berman suggested the NFLPA deserved the right to cross-examine him.