In its statement Friday, the NFLPA indicated it could still continue to pursue DeflateGate all the way to the Supreme Court.
“We will continue to review all of our options and we reserve our rights to petition for cert to the Supreme Court,” the union said. Brady has also reportedly authorized the NFLPA to follow through with its appeal, if it decides to go that route.
DeflateGate ceased being about deflated footballs long ago, and the probability of the NFLPA continuing its legal fight affirms that. Even though Tom Brady announced he will no longer fight his suspension, the Players’ Association still has a strong incentive to try to get this case in front of the Supreme Court.
When a federal judge overturned Brady’s suspension last fall, it seemed as if the NFLPA was on the verge of wrestling away disciplinary power from Goodell. The commissioner was on a losing streak, suffering a series of high-profile legal losses, as neutral arbitrators and judges vacated the BountyGate player suspensions in addition to the Ray Rice and Adrian Peterson bans (the NFL is currently appealing the Peterson ruling). An arbitrator whittled down Greg Hardy’s suspension from 10 games to four contests last year as well.
But roughly just six weeks after the NFL and NFLPA were reportedly negotiating a way to lessen Roger Goodell’s authority, a federal appeals court reinstated Brady’s suspension in late April. “We hold that the commissioner properly exercised this broad discretion under the collective bargaining agreement and that his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness,” the majority opinion said. “Accordingly, we reverse the judgment of the district court and remain with instructions to confirm the award.”
Once that ruling was issued, the league no longer had any incentive to work out a deal with the players’ union. One of the highest courts in the land essentially determined there are no limits to Goodell’s disciplinary power in the CBA.
2nd Circuit acknowledges NFLPA agreed to "especially broad" authority for Goodell, presumed "mutually satisfactory" pic.twitter.com/MSoqdoCznZ— Dan Werly (@WerlySportsLaw) April 25, 2016
The union has 90 days to petition the Supreme Court, and would likely argue that the ruling in this case could have far-reaching effects for the future of the NFL.
Though the chances of the Supreme Court accepting the NFLPA’s appeal are slim, there’s no downside to the union exhausting all of its legal options. If the Eighth Circuit rules against the NFL in the Peterson case, the Supreme Court may feel compelled to hold hearings, as there would be a split decision in the circuit courts regarding the scope of Goodell’s authority to hand down discipline.
With the rule of law now on his side, Goodell almost certainly wouldn’t cede any of his punitive power without a major concession from the players. Since the disciplinary process only affects a small percentage of players, it’s unlikely that the NFLPA would be willing to give up something that benefits all of its members –– such as decreasing the total percentage of revenue that players receive –– in exchange for placating a select few. The union doesn’t have many bargaining chips at this point.
It feels like the only way Goodell will ever relinquish any of his disciplinary power is with some convincing from the highest court in the land. It may be the union’s last chance to gain leverage in its quest to curtail the commissioner’s unilateral authority and give the NFLPA a leg up going into the next collective bargaining agreement negotiations in 2021.