The Deflategate Drama: A Win for the Patriots scores a Touchdown for Arbitration

Lorraine M. Brennan, Esq.

Lorraine M. Brennan, Esq.

The “Deflategate scandal,” in which the New England Patriots, and in particular their star quarterback, Tom Brady, were accused of deflating footballs beneath the required PSI (12.5-13.5 psi) to somehow gain an advantage over competing teams was a very hot topic among American football enthusiasts. However, it has also become a case study on how the arbitration process for vacating and confirming arbitration awards under the Federal Arbitration Act (FAA) worked properly, thus ensuring the integrity and fairness of the process.

During the January 18, 2015 AFC Championship game between the New England Patriots and the Indianapolis Colts, a ball thrown by Brady was intercepted by the Colts linebacker, who turned it over to the Colts equipment staff as he believed the football felt underinflated. The Colts equipment manager, in violation of the rules, used a pressure gauge to measure the football and found that the inflation level was approximately 11 psi, which was below the required standard. At halftime, NFL officials collected and tested 11 of the balls supplied by the Patriots and four balls that the Colts had prepared. All 11 of the Patriots balls were under-inflated below the required 12.5 psi. The balls were re-inflated to 13 psi for the second half of the game, in which the Patriots were victorious.

Not long after the game the NFL commissioned an investigation of the event. Leading the investigation was Ted Wells, Esq., an attorney with the law firm of Paul Weiss, and Jeff Pash, the NFL Executive President and General Counsel. The investigation was undertaken pursuant to the NFL “Policy on Integrity of the Game & Enforcement of Competitive Rules,” which was sent from Roger Goodell, the Commissioner of the NFL to Chief Executives, Club Presidents, General Managers and Head Coaches. Notably, this policy was not distributed to the players.

The Wells Report concluded that “it is more probable than not” that Brady was at least generally aware of the inappropriate activities of McNally and Jastremski (the Officials Locker Room attendant and Patriots equipment assistant in charge of footballs, respectively) involving the release of air from Patriots game balls.” The Wells report also concluded that “it is unlikely that an equipment assistant and a locker room attendant would deflate game balls without Brady’s knowledge and approval.”

Following the issuance of the report, a disciplinary decision letter was sent to Patriots owner. A separate letter was to Brady informing him of the disciplinary action to be taken against him – a four game suspension. Brady appealed the disciplinary action through the Player’s Association. Commissioner Goodell appointed himself as the arbitrator to hear Brady’s appeal, which he had the authority to do under the Collective Bargaining Agreement (CBA) with the Players. The Player’s Union filed a motion seeking Goodell’s recusal from serving as the Arbitrator, but the motion was denied by Goodell, who claimed under the CBA he had the discretion to serve as a hearing officer in any appeal involving conduct detrimental to the integrity of the game.

Brady, through the Players Association, made several discovery motions. First, he requested “[a]ll Documents created, obtained, or reviewed by NFL investigators in connection with the investigation; Second, he moved to compel the testimony of NFL Executive Jeff Pash, a senior executive of the NFL who had been designated co-lead investigator for the Wells Report, as well as a number of other document requests upon which the Players Association intended to question Pash. These requests were denied by Goodell, citing the CBA wherein documents to be used at the hearing were required to be turned over “no later than three calendar days prior to the hearing,” and that the CBA provides for “tightly circumscribed discovery.”

In July 2015, Goodell published a 20 page Award on Brady’s appeal, which upheld the four game suspension. The Goodell award went far beyond what the Well’s report had concluded, in that Goodell stated that “Mr. Brady knew about, approved of, 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.”

The NFL then moved to confirm the Arbitral Award in the Federal Court in New York, while at the same time the Players Association moved to vacate the award in the Federal Court in Minnesota. As the NFL was first to file, the motion to confirm and the motion to vacate were consolidated in the Federal Court in New York. Judge Richard Berman presided over the proceedings.

Judge Berman recognized that the standard for review of arbitral awards under the FAA 9 U.S.C. Section 10 is a deferential one, yet nonetheless he noted that “the deference due an arbitrator does not extend so far as to require a district court to countenance, much less confirm, an award obtained without the requisites of fairness or due process.” Judge Berman focused on numerous instances in the arbitration where Brady was not given a fair hearing, including the fact that Brady was never provided with the “Policy on Integrity of the Game & Enforcement of Competitive Rules,” nor was he ever advised that he would be subject to suspension from the game for “general awareness” of ball deflation by others.

Judge Berman focused on the fact that Goodell had likened Brady’s conduct to the use of anabolic steroids, a practice that had in the past subjected NFL players to suspensions from games, a comparison he soundly rejected. He also found that Brady had been denied the opportunity to examine the co-lead investigator in the case, Jeff Pash, which was not in line with NFL precedent wherein players must be afforded the right to confront their investigators. Judge Berman ruled that the denial of that opportunity was “fundamentally unfair” and in violation of FAA Section 10(a)(3), which resulted in prejudice to Brady. The Judge also found that Brady was improperly denied the opportunity to have equal access to investigative files, and that this fact was especially noteworthy as Paul Weiss, who participated in preparing the “independent” Wells report, represented the NFL before the Judge and actually cross-examined Brady. The Court ordered the award to be immediately vacated. The NFL is appealing Judge Berman’s decision.

This case is noteworthy as the arbitration process worked as intended. The Court made it clear that while deference is clearly given to arbitral awards, it will not be so when a party is not given basic procedural fairness. So while there will still be those who continue to obsess about deflated footballs, the real win in this process was for the fundamental integrity of arbitration. And that is a touchdown not only for those who work in the arbitration field, but the users of the process as well.

Lorraine M. Brennan is a full time arbitrator and mediator at JAMS, specializing in international dispute resolution, employment, complex commercial and intellectual property among other specialties.  The views expressed in this piece are her own, and not those of JAMS.  She is a native of New England, but admittedly not a football fan.  She was assisted with the underlying technical aspects of the Deflate-Gate saga by Lisa Duggan Brown, M.S. in Engineering Management, Northeastern University. She can be reached at


JAMS Foundation Awards Grant to New York Peace Institute

The JAMS Foundation is proud to announce it approved a $180,000 grant to the New York Peace Institute to work with the New York Police Department to expand a neighborhood-based police training program. The funding will enable the NY Peace Institute and the NYPD to work together to promote positive police-community relations through productive problem-solving.  The proposal represents an unprecedented endorsement of mediation as a useful tool for police officers.

The two organizations will build a critical mass of Neighborhood Coordination Officers who can use mediation skills in engaging with community members. With this funding, nearly 300 NYPD officers will develop and use a range of new skills for peacefully de-escalating conflict and constructively engaging the public. While patrolling their assigned neighborhoods, the NCOs will spend nearly all of their time interacting with the public and building relations and trust with the communities they serve. The NCOs will use conflict resolution skills to address a wide range of public safety problems.

“We believe the partnership between the New York Peace Institute and NYPD can produce significant and lasting change, and provide a model for cities and communities across the country,” said David Brandon, managing director of the JAMS Foundation.  “The Foundation is pleased to support NYPI’s work in raising awareness about the use of conflict resolution methods to address tensions between the police and the communities they serve.”

“It is more important than ever to build trust between our neighborhoods and police,” said Brad Heckman, CEO of the New York Peace Institute. “We are excited about the opportunity to embed mediation in the NYPD on a significant scale.”

“In order to work more effectively with communities, our NCOs need to listen well, and engage in collaborative problem-solving,” said Police Commissioner William J. Bratton. “This training will help them do that.”

The New York Peace Institute is one of the nation’s largest community mediation programs, giving more than 10,000 people the resources they need to manage conflict, heal relationships and build community cohesion each year. The organization began in 1981 as a program of Safe Horizon, a leading victims’ services organization, and became an independent organization in 2011. As New York’s largest civilian peaceforce, its mission is to build peace and prevent violence in the city and beyond.

How Likely Am I to Win? Risk, Uncertainty & the Turkey Illusion

Richard Birke

Richard Birke

By Rich Birke

When parties are faced with an attractive settlement offer, they frequently wish to compare the offer to what they might get at trial, which is the product of the odds of winning times the value of the verdict or award.   Naturally, they ask their lawyer “how likely am I to win?”

What kind of answer is called for? Answers to questions like this come in two flavors.  Flavor one – you know the odds – is called decision-making under conditions of RISK.  Flavor two – you don’t know the odds – is called decision-making under conditions of UNCERTAINTY.  The two aren’t at all alike!  The first is more like a slot machine or a lottery.  The second is more like picking stocks, predicting earthquakes and making most business decisions.  Confusing the one for the other can be a disaster.

In his brilliant book Risk Savvy, How to Make Good Decisions, prolific author and scientist Gerd Gigerenzer describes the dangers of confusing one kind of decision with the other.  He says risks can be calculated when there is (1) low uncertainty – a predictable and stable situation (2) few alternatives – not too many factors to estimate (3) a high amount of data available to make these estimations.

However, since at least the 1700s, we’ve known that people prefer risky decisions to uncertain decisions – so much so that they will turn uncertain decisions into risky decisions in their minds, even when reality is different.  An example of this is the “turkey illusion.”

If you want to figure out what is likely to happen tomorrow, you can look at what’s happened in prior days.  If you are in the Gobi Desert and you want to know whether it will rain tomorrow, you can look at the prior day and the day before that, and that data will help you determine tomorrow’s weather.  This “rule of succession” means the past is predictive of the present.

But not for a turkey.  If every day the farmer feeds and pets the turkey, the turkey could calculate the odds starting with the fourth Friday in November and conclude “I’ve been fed and petted 159 days in a row – the odds of being fed and petted on the 160th day are 160/161 or 99+%.”  And that logic will hold true all the way to 364/365…and then Thanksgiving will come and the poor turkey will have logically concluded that morning that it has nothing to fear – because a savvy risk-taker would deem the odds of death as vanishingly small.

Gigerenzer attacks this topic from many vantage points. He analyzes leadership decisions and the work of CEOs (ch. 6), medical decisions and the ploys used by and on doctors (ch. 9), consumer decision-making and the effects of misleading ads (ch. 5) and more.  Each time, there are simple tips and rules of thumb to help navigate through these sometimes murky waters.

Can a lawyer predict with accuracy the outcome of a potential case? Let’s analyze that question further, together, in the days to come.  For now, I strongly recommend you go out, buy and read Risk Savvy.  It might just save your neck come Thanksgiving.

Risk Savvy: How to Make Good Decisions is available from Viking Press and was published in hardback in 2014.

New Impasse-Busting Techniques – Part 2

Bruce A. Friedman, Esq.

Bruce A. Friedman, Esq.

I have recently discovered some additional, impasse-busting techniques for your consideration when the negotiating process grinds to a halt.

The Mediator’s Bracket

This is a useful technique in both early and late stages of a mediation. In the early stage, the parties remain too far apart for distributive bargaining to gain any traction. Here, you have defendants saying that if the plaintiff stays above X dollars, we are just not going to offer much. On the other hand, the plaintiff is saying that the defendants have to offer at least a seven-figure number or they are not going to get anywhere today. Voila: the mediator’s bracket. No one owns the numbers, just the mediator. The mediator proposes high and low numbers that neither party has offered or demanded. For example, the numbers may be pretty far apart ($5 million and $500,000 or $4 million and $1 million), but this works when the parties were at, for example, $8 million and $225,000, and were not willing to move with that much distance between them.

Buy-in by the parties will bust the impasse and allow for an increased pace of negotiation. Like all impasse-busting techniques, even if the parties reject its use, discussion of the technique and the mediator’s proposed bracket will prompt a very helpful discussion in terms of where the parties may be willing to go and a bracket that might work. Late in the mediation, the parties should be able to propose their own brackets with some mediator consultation, but the mediator’s bracket could be used as a means of closing a settlement as well.

Baseball Mediation

If the thought of this one gives you the chills, you already get it! Here, the parties have been at it all day, but neither is willing to compromise further in order to close the deal. Here we go! The mediator proposes that each side pick a number and the mediator picks a number. Each side and the mediator writes the number on a piece of paper.  All agree that the mediator will choose the settlement number closest to what she has written down as the mediator’s number. Hopefully, this process pushes the parties to pick a number between the last offer and counter. But the mediator has to pick one of the party’s numbers and not a compromise figure. This is a controversial technique as it moves the mediator from facilitator to decision maker. It is not for the faint of heart and could leave a party feeling burned by the mediator. On the other hand, it is not that different from a mediator’s proposal with the exception that the parties have agreed in advance to accept it.

The bottom line: be creative and constructive, stay optimistic and settle!

Bruce A. Friedman, Esq. is a JAMS neutral, based in Southern California. He is an accomplished dispute resolution professional who has mediated and arbitrated a wide range of disputes, including insurance, class action, professional liability, business, real estate and entertainment and copyright matters. He can be reached at