Case 15-2805, Document 181-1, 05/31/2016, 1782930, Page1 of 5

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500
MOTION INFORMATION STATEMENT
Docket Number(s):
Motion for:

15-2801(L), 15-2805(Con)

Leave to File Brief as Amicus Curiae in

Support of Appellees' Petition for Panel Rehearing

Caption [use short title]

National Football League Management Counsel v.

National Football League Players Association

or Rehearing en Banc
Set forth below precise, complete statement of relief sought:

Leave to File Amicus Brief Pursuant to FRAP

Rule 29

American Federation of Labor and Congress of Industrial Organizations

MOVING PARTY:
9 Plaintiff
9 Appellant/Petitioner
MOVING ATTORNEY:

9 Defendant
9 Appellee/Respondent

OPPOSING PARTY:

National Football League

James B. Coppess

OPPOSING ATTORNEY: Paul

[name of attorney, with firm, address, phone number and e-mail]

James B. Coppess

Clement

Bancroft PLLC, Suite 700

815 16th Street, N.W., Washington, D.C. 20006 500 New Jersey Avenue, N.W.

Washington, D.C. 20001

202-637-5397
Court-Judge/Agency appealed from:

United States District Court for the Southern District of New York, Judge Richard M. Berman

Please check appropriate boxes:

Has movant notified opposing counsel (required by Local Rule 27.1):
9 Yes 9 No (explain):

FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND

INJUNCTIONS PENDING APPEAL:
9 Yes 9 No
Has request for relief been made below?
Has this relief been previously sought in this Court?
9 Yes 9 No
Requested return date and explanation of emergency:

Opposing counsels position on motion:

9 Unopposed 9 Opposed 9 Dont Know

Does opposing counsel intend to file a response:
9 Yes
9 No 9 Dont Know

Is oral argument on motion requested?

9 Yes
9 No (requests for oral argument will not necessarily be granted)

Has argument date of appeal been set?

9 Yes
9 No If yes, enter date:__________________________________________________________

Signature of Moving Attorney:

May 31, 2016
___________________________________Date:
___________________
/s/ James B. Coppess

Form T-1080 (rev. 12-13)

Service by:
9 CM/ECF

9 Other [Attach proof of service]

Case 15-2805, Document 181-1, 05/31/2016, 1782930, Page2 of 5

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
___________________________________
Nos. 15-2801 (L), 15-2805 (Con)
___________________________________
NATIONAL FOOTBALL LEAGUE MANAGEMENT COUNCIL,
Plaintiff-Counter-Defendant-Appellant,
and
NATIONAL FOOTBALL LEAGUE,
Defendant-Appellant,
v.
NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, ON ITS OWN
BEHALF AND ON BEHALF OF TOM BRADY,
Defendant-Counter-Claimant-Appellee,
and
TOM BRADY,
Counter-Claimant-Appellee.
___________________________________
UNOPPOSED MOTION OF AMERICAN FEDERATION OF LABOR AND
CONGRESS OF INDUSTRIAL ORGANIZATIONS FOR LEAVE TO FILE
BRIEF AS AMICUS CURIAE IN SUPPORT OF APPELLEES PETITION
FOR PANEL REHEARING OR REHEARING EN BANC
___________________________________
Pursuant to Federal Rule of Civil Procedure 29(b), the American Federation
of Labor and Congress of Industrial Organizations (AFL-CIO) moves for leave to
file the attached brief as amicus curiae in support of the Petition for Panel
Rehearing or Rehearing En Banc of Appellees National Football League Players
1

Case 15-2805, Document 181-1, 05/31/2016, 1782930, Page3 of 5

Association and Tom Brady. All parties have consented to the filing of this brief
amicus curiae.
I.

Statement of Interest
The AFL-CIO is a federation of 57 national and international labor

organizations representing approximately 12.2 million working men and women.

Most collective bargaining agreements negotiated by AFL-CIO-affiliated unions
contain arbitration provisions to resolve disputes over the meaning of the contract,
including with regard to discipline. As a result, the AFL-CIO has extensive
experience with the operation of arbitration procedures in the disciplinary setting
and a significant interest in the application of the proper standard for judicial
review of decisions rendered pursuant to arbitration procedures.
II.

Reasons Why The Proposed Amicus Brief Is Desirable and the Matters
Asserted Are Relevant
This case concerns the Courts review of a decision by NFL Commissioner

Roger Goodell rejecting the appeal by the National Football League Players
Association of discipline issued to player Tom Brady. The panel majority
subjected that decision to the highly deferential judicial review ordinarily extended
to decisions of neutral arbitrators. The proposed amicus brief is desirable because
it provides a clear explanation to the Court of the lack of procedural fairness in the
underlying decision. A review of the substance of the Commissioners decision
makes clear that, in hearing the appeal, the Commissioner was acting in a role of
2

Case 15-2805, Document 181-1, 05/31/2016, 1782930, Page4 of 5

an employer seeking to justify his own initial disciplinary decision rather than as a
neutral arbitrator.
The AFL-CIO therefore respectfully moves for leave to file the attached
brief amicus curiae.

Dated: May 31, 2016

Respectfully submitted,
/s/ James B. Coppess
Lynn K. Rhinehart
Harold C. Becker
James B. Coppess
815 Sixteenth Street, NW
Washington, DC 20006
(202) 637-5337

Case 15-2805, Document 181-1, 05/31/2016, 1782930, Page5 of 5

CERTIFICATE OF SERVICE
I, James B. Coppess, certify that on May 31, 2016, the foregoing Unopposed
Motion of American Federation of Labor and Congress of Industrial Organizations
for Leave to File Brief as Amicus Curiae in Support of Appellees Petitioner for
Panel Rehearing or Rehearing En Banc was electronically filed with the Clerk of
the Court for the United States Court of Appeals for the Second Circuit and served
on all parties or their counsel of record through the CM/ECF system if they are
registered users or, if they are not, by serving a true and correct copy via first class
mail.

/s/ James B. Coppess

James B. Coppess

Case 15-2805, Document 181-2, 05/31/2016, 1782930, Page1 of 10

15-2801(L)
15-2805 (Con)
IN THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
_______________
NATIONAL FOOTBALL LEAGUE MANAGEMENT COUNCIL,
Plaintiff-Counter-Defendant-Appellant,
and
NATIONAL FOOTBALL LEAGUE,
Defendant-Appellant,
v.
NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION,
ON ITS OWN BEHALF AND ON BEHALF OF TOM BRADY,
Defendant-Counter-Claimant-Appellee,
and
TOM BRADY,
Counter-Claimant-Appellee.
_______________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK, NOS. 15-5916, 15-5982
_______________
BRIEF OF THE AMERICAN FEDERATION OF LABOR AND
CONGRESS OF INDUSTRIAL ORGANIZATIONS AS AMICUS CURIAE
IN SUPPORT OF APPELLEES PETITION FOR PANEL REHEARING
OR REHEARING EN BANC
_______________
Lynn K. Rhinehart
Harold C. Becker
James B. Coppess
815 16th Street, NW
Washington, DC 20006
(202) 637-5397

Case 15-2805, Document 181-2, 05/31/2016, 1782930, Page2 of 10

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .....................................................................................ii
INTEREST OF AMICUS CURIAE ........................................................................... 1
ARGUMENT ............................................................................................................. 1
CONCLUSION .......................................................................................................... 4

Case 15-2805, Document 181-2, 05/31/2016, 1782930, Page3 of 10

TABLE OF AUTHORITIES
CASES:

Page

Commonwealth Coatings Corp. v. Contl Casualty Co.,

393 U.S. 145 (1968) ........................................................................................ 2
United Paperworkers Intl Union v. Misco, 484 U.S. 29 (1987) .......................... 2, 3

MISCELLANEOUS:
BLACKS LAW DICTIONARY (6th ed. 1990) ................................................................ 2
N. BRAND & M. BIREN, DISCIPLINE AND DISCHARGE
IN ARBITRATION (2d ed. 2008) .................................................................... 2, 3

ii

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INTEREST OF AMICUS CURIAE

The American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO) is a federation of 57 national and international
labor organizations representing approximately 12.2 million working men
and women.1 Most collective bargaining agreements (CBAs) negotiated by
AFL-CIO-affiliated unions contain arbitration provisions to resolve disputes
over the meaning of the contract, including with regard to discipline. As a
result, the AFL-CIO has extensive experience with the operation of
arbitration procedures in the disciplinary setting.
ARGUMENT
The panel majority subjected the decision by NFL Commissioner
Roger Goodell (the Commissioner) rejecting the appeal by the NFL Player
Association (the Association) of discipline issued to player Tom Brady to
highly deferential judicial review. Slip Op. 3. That was error. Because the
Commissioner who issued the discipline to Brady in the first instance
failed to follow basic procedural fairness and acted arbitrarily as an
employer seeking to justify his own disciplinary decision rather than as a
neutral arbitrator considering an appeal his decision should be vacated.

1
No counsel for a party authored this brief amicus curiae in whole or in part, and
no person or entity, other than the amicus, made any monetary contribution to the
preparation or submission of this brief.

Case 15-2805, Document 181-2, 05/31/2016, 1782930, Page5 of 10

While the NFL and NFLPA bargained to allow the Commissioner to hear
appeals of disciplinary decisions, they did not agree to let the Commissioner,
sitting as an appellate arbitrator, to act in a manner that is arbitrary and
capricious. Regardless of who hears appeals, labor arbitration always must
be fundamentally fair.
The Supreme Court has made clear that elementary requirements of
impartiality taken for granted in every judicial proceeding are not
suspended when the parties agree to resolve a dispute through arbitration.
Commonwealth Coatings Corp. v. Contl Casualty Co., 393 U.S. 145, 145
(1968). Even a cursory review of the Commissioners decision makes clear
that he acted in the self-serving role of an employer justifying his own
disciplinary decision rather than as a neutral arbitrator considering an appeal.
It is well-established that an arbitrator [i]s to look only at the
evidence before the employer at the time of discharge and, therefore, the
correctness of a discharge must stand or fall upon the reason given at the
time of discharge. United Paperworkers Intl Union v. Misco, 484 U.S. 29,
39-40 & n.8 (1987) (citation and quotation marks omitted). Other reasons
cant be added later when the case reaches arbitration merely in an attempt
to strengthen the employer[]s defense. N. BRAND & M. BIREN, DISCIPLINE
AND DISCHARGE IN ARBITRATION

Ch. 2.II.A.3, p. 50 (2d ed. 2008).

Case 15-2805, Document 181-2, 05/31/2016, 1782930, Page6 of 10

Otherwise, the Associations bargained-for right to appeal [an] action

taken against a player by the Commissioner for conduct detrimental, JA345
(CBA Art. 46 1(a)), is rendered meaningless.
The Commissioner, rather than limiting his review to his initial
rationale for the discipline, instead change[d] the factual basis for the
disciplinary action after the appeal hearing conclude[d], Slip Op. 1
(Katzmann, C.J., dissenting). The initial discipline was based on the
Commissioners finding that Brady was at least generally aware of the
actions of the Patriots employees involved in the deflation of the footballs
and that it was unlikely that their actions were done without [Bradys]
knowledge. JA329. In its appeal, the Association, therefore, contested
whether the evidence relied upon by the Commissioner constituted a legally
[]adequate basis upon which to impose this . . . discipline, JA 1119, i.e.,
whether general[] aware[ness] of the wrongful actions of others is a
sufficient basis for discipline under the CBA.
Rather than engage with this issue to test the correctness of [the
discipline] based upon the reason given at the time, Misco, 484 U.S. at
39 n.8 (1987), the Commissioner attempt[ed] to strengthen the employer[]s
defense, BRAND & BIREN, DISCIPLINE AND DISCHARGE, p. 50. As the
dissenting panel member explained, the Commissioner made a change

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[that] was material to the rationale for his initial disciplinary decision
from a theory that it was more probable than not that Tom Brady . . . was at
least generally aware of the inappropriate activities of [Jim] McNally and
[John] Jastremski involving the release of air from Patriots game balls, to a
theory that Brady knew about, approved of, consented to, and provided
inducements and rewards in support of a scheme by which, with Mr.
Jastremskis support, Mr. McNally tampered with the game balls[,] i.e.,
that Brady knowingly engaged in a quid pro quo. Slip Op. 3 (Katzmann,
C.J., dissenting) (quoting JA14 and SA51) (emphasis in Slip Op.).
The substantiality of the Commissioners shifting rationale for
Bradys discipline, ibid., serves as strong evidence that the Commissioner
was not acting as a neutral arbitrator considering an appeal at all, but rather
as an employer seeking to justify his own initial disciplinary decision. The
panel majority therefore erred in extending deference to the Commissioners
decision.
CONCLUSION
The Court should grant the Associations petition for panel rehearing
or, in the alternative, grant the petition for en banc review.

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Dated: May 31, 2016

Respectfully submitted,
/s/ James B. Coppess
Lynn K. Rhinehart
Harold C. Becker
James B. Coppess
815 Sixteenth Street, NW
Washington, DC 20006
(202) 637-5337

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CERTIFICATE OF COMPLIANCE WITH LENGTH, TYPEFACE

REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS
1. This brief complies with the length limitations of Fed. R. App. P.
29(d) because this brief is no more than one-half the maximum length
authorized for appellees principal brief by Fed. R. App. P. 35(b)(2) and Fed.
R. App. P. 40(b).
2. This brief complies with the typeface requirements of Fed. R. App.
P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
because the brief has been prepared in a proportionately spaced typeface
using Microsoft Word 2013 in a 14-point type in a Times New Roman font
style.

Dated: May 31, 2016

/s/ James B. Coppess

Case 15-2805, Document 181-2, 05/31/2016, 1782930, Page10 of 10

CERTIFICATE OF SERVICE
I certify that on May 31, 2016, the foregoing Brief of the American
Federation of Labor and Congress of Industrial Organizations as Amicus
Curiae in Support of Appellees Petition for Panel Rehearing or Rehearing
En Banc was electronically filed with the Clerk of the Court for the United
States Court of Appeals for the Second Circuit and served on all parties or
their counsel of record through the CM/ECF system if they are registered
users or, if they are not, by serving a true and correct copy via first class
mail.

Dated: May 31, 2016

/s/ James B. Coppess