This won’t console New England fans, but Tom Brady and the rest of the Patriots should have listened to the Pittsburgh Steelers. Had Brady and the NFL Players Association heeded the warnings by the Steelers, we might never have been cursed with the never-ending saga of Deflategate.

On Wednesday, one of only two days in the entire year without a major professional sports game, the 2nd Circuit Court of Appeals denied Brady’s request for a rehearing of his four-game suspension for allegedly deflating footballs during a 2015 playoff game. By doing so, the Court essentially approved of NFL Commissioner Roger Goodell acting as the judge, jury, prosecutor, and executioner in league disciplinary hearings.

Although a seemingly unfair process, the Court was right when it ruled 2-1 in April that such a lopsided disciplinary system was exactly what Tom Brady and the NFLPA consented to in the Collective Bargaining Agreement.

The Hon. Barrington D. Parker, writing for the majority, explained that “the Commissioner properly exercised his broad discretion under the collective bargaining agreement and that his procedural rulings were properly grounded in that agreement.”

And do you know who warned about such broad discretion? The Steelers.

In 2011, the Steelers were the only NFL team to vote against the CBA, and they did so by a huge margin of 78-6. Somehow no other locker room bothered to actually figure out what was in that CBA. This is why James Harrison has every reason to gloat on Twitter:


The Steelers have always been vocal about Goodell’s unchecked powers, but they had enough foresight to fear that the he could exploit the vague language in the CBA to the players’ disadvantage. Unfortunately, the NFLPA did not listen.

Instead, they ratified a particularly troubling section of the CBA — Article 46 — which granted the Commissioner broad power to discipline players for “conduct detrimental to the integrity of, or public confidence, in the game of professional football.”

Exactly what that means is anyone’s guess. Why the NFLPA did not further define “conduct detrimental to the game,” specify limits to Goodell’s power, or mandate a neutral arbitrator should puzzle even first-year law students who likely could have negotiated a better deal.


Indeed, that is why the 2nd Circuit deferred to Goodell’s decision to reinstate Brady’s suspension. Judge Parker held that

If it is seriously believed that these procedures were deficient or prejudicial, the remedy was to address them during collective bargaining. Had the parties wished to otherwise limit the arbitrator’s authority, they could have negotiated terms to do so.

. . .

Here, the parties contracted in the CBA to specifically allow the Commissioner to sit as the arbitrator in all disputes brought pursuant to Article 46, Section 1(a). They did so knowing full well that the Commissioner had the sole power of determining what constitutes “conduct detrimental,” and thus knowing that the Commissioner would have a stake both in the underlying discipline and in every arbitration brought pursuant to Section 1(a). Had the parties wished to restrict the Commissioner’s authority, they could have fashioned a different agreement.


That holding should upset every NFL player. They entrusted the union to protect them, but instead, Deflategate and the excesses of Goodell’s power it represents, is exactly what they bargained for.

At this point, Tom Brady and the NFLPA will likely continue to fight the league on this suspension, not necessarily for Brady’s sake, but to prevent setting a dangerous precedent for future cases.

However, Brady is down to a Hail Mary. He must seek a stay of the 2nd Circuit’s decision and petition the U.S. Supreme Court. The funny thing is, however, that Ruth Bader Ginsburg is the judge overseeing the 2nd Circuit. This means that Brady, a good friend of the one and only Donald Trump, must appeal to to the judge that Trump just publicly blasted — the notorious RBG.


In other words, warm up Jimmy Garoppolo.

Steve Silver is a former sports reporter for the Las Vegas Sun and is now a lawyer in Philadelphia. You can reach him at or on Twitter@thelegalblitz.

Photo courtesy of Getty Images.