Canada: The NFL Deflategate Scandal - The Second Half

Last Updated: April 29 2016
Article by Clifford J. Hart

Most Read Contributor in Canada, November 2017

In September 2015, we reported on the U.S. District Court's decision to overturn ("vacate") the four-game suspension issued by NFL Commissioner Roger Goodell on Tom Brady of the New England Patriots for his role in the "deflategate" scandal (" Fantasy Football — Lessons Learned from Deflategate").

On April 25, 2016, the U.S. Court of Appeals for the Second Circuit (the "Court") reversed the District Court's decision and restored the suspension. The Court, which was critical of the lower court's decision, found that the Commissioner acted within the broad powers given to him by the NFL and the National Football League Players' Association ("Association") under the parties' collective bargaining agreement ("CBA"). The Court's discussion on the deference that should be given to arbitrators in the United States is relevant to the Canadian legal landscape as well.

A brief history of the bouncing football is in order.

During the second quarter of the American Football Conference Championship Game of January 18, 2015 between the Indianapolis Colts and the Patriots, a Colts' player suspected that a ball that he caught (intercepted) might have been under-inflated. At half-time, it was determined all eleven of the balls controlled by the home-team Patriots actually measured below the permissible range of 12.5 – 13.5 psi.

Within a few days after the game, the NFL retained Theodore V. Wells and a law firm to conduct an independent investigation into whether there had been improper ball tampering before or during the game. The 139 page "Wells Report" of May 6, 2015 concluded, among other things, that:

  • It was more "probable than not" that two of the Patriots equipment managers had participated in a deliberate effort to release air from Patriots game balls after the balls were examined by the referee;
  • It was more "probable than not" that Brady was at least generally aware of the actions, as it was unlikely that an equipment assistant and a locker room attendant would deflate game balls without Brady's "knowledge", " approval ", "awareness" and "consent";
  • The investigation had been impaired by Brady's refusal "to make available any documents or electronic information (including text message and emails)...".

On May 11, 2015, Brady was notified by Troy Vincent, the NFL's Executive VP, that the Commissioner authorized a four-game suspension pursuant to Article 46 of the CBA for engaging in "conduct detrimental to the integrity of, and public confidence in, the game of professional football". The disciplinary notice referred to Brady's awareness and knowledge of the scheme and his "failure to cooperate fully and candidly with the investigation, including by refusing to produce relevant electronic evidence...".

Brady, through the Association, appealed the suspension and the Commissioner exercised his discretion under the CBA to act as the hearing officer (arbitrator). A series of motions were also filed by the Association, including one seeking to have the Commissioner step down from hearing the matter.

The motions were denied by the Commissioner, and on June 23, 2015, he held a lengthy hearing to address the Association's appeal of the suspension. Shortly before the hearing, however, it was revealed that in early March, 2015 — on the same day he was to be interviewed by the investigative team — Brady instructed his assistant to destroy the cellphone that he had been using from early November, 2014 through to the AFC Championship game, despite knowing the investigators had requested it.

In his award of July 28, 2015, the Commissioner found that Brady had not only failed to cooperate with the investigation, but he made a "deliberate effort to ensure" that the investigators would never have access to information that he had been asked to produce. The Commissioner, sitting as the arbitrator, drew an adverse inference that the cell phone would have contained damaging evidence regarding Brady's role in the scheme. In upholding the suspension, he found that Brady's conduct was analogous to that of steroid users who tried to gain a competitive advantage to the game — thus the four-game suspension was justified.

The NFL Management Council filed a motion to confirm the award while the Association sought to have it vacated by the District Court. The Association was successful. On September 3, 2015, Judge Berman of the District Court overturned the suspension, on the basis that there were "significant legal deficiencies" with the Commissioner's award. The NFL filed an appeal with the Court.

In a 2-1 decision of April 25, 2016, the Court reversed Judge Berman's judgment and restored the four-game suspension issued to Brady.

The Court first explained that because the dispute involved the assertion of rights under a collective bargaining agreement, its analysis was governed by the Labor Management Relations Act ("LMRA") which established a federal policy of promoting industrial stabilization through the collective bargaining agreement and embodied clear preference for the private resolution of labor disputes without government intervention. The Court confirmed that because collective bargaining agreements are negotiated and refined over time by the parties themselves to reflect their needs, and since arbitrators are chosen by the parties because of their expertise in the particular business and their trusted judgment to interpret and apply the agreement, a court's review of an arbitration award is "very limited". Importantly, the Court stated that its jurisdiction is not to review the arbitrator's decision on the merits, or to determine whether the punishment was the most appropriate. Instead, the Court's role is to "inquire only as to whether the arbitrator acted within the scope of his authority", which in this case was the CBA.

Based on the above, the Court found that:

  • The Commissioner's decision to discipline Brady was "plausibly grounded in the parties agreement", which was all the law required;
  • The Commissioner's interpretation of the subject policies could easily withstand judicial scrutiny because his interpretation was at least "barely colourable", which was also all that the law required;
  • The comparison drawn by the Commissioner between Brady's conduct and that of steroid users was within his discretion to make, and did not require advance notice to Brady;
  • The Commissioner's conclusion that Brady participated in the scheme was a reasonable reassessment of the facts and information developed at the hearing, and was therefore within his jurisdiction;
  • The adverse inference drawn by the Commissioner in regard to the destruction of evidence was within his discretion as well;
  • Brady was not deprived of fundamental or procedural fairness.

In the end, the Court concluded that the "parties contracted in the CBA to specifically allow the Commissioner to sit as the arbitrator... knowing full well that (he) had sole power of determining what constitutes 'conduct detrimental', and thus knowing that the Commissioner would have a stake in both the underlying discipline and in every arbitration" brought under the CBA. The District Court's judgment therefore was reversed, and the arbitration award was confirmed.

Despite not having the LMRA (or four downs) in Canada, the decision shows how courts defer to arbitrators, or other specialized tribunals. Our Supreme Court has stated there are two standards to be applied on judicial review applications. The "standard of correctness" is used in respect of jurisdictional and other questions of law. However, the "reasonableness standard" is to be applied to decisions which involve questions of fact, discretion and policy, as well as questions where the legal issues cannot be easily separated from the factual ones. It is entirely possible, therefore, that a higher court in Canada would have followed the same path as the U.S. Court of Appeals.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions