Deflate-Gate Suspension Protest Kicked to NY

      MINNEAPOLIS (CN) – A federal judge blocked an attempt at forum shopping Thursday in the fight over Tom Brady’s National Football League suspension.
     U.S. District Judge Richard Kyle’s transfer order comes just one day after the NFL Players Association turned to Kyle’s Minnesota court for relief over Brady’s deflate-gate-linked suspension.
     The controversy erupted during a Jan. 18, 2015, championship game between the New England Patriots and the Indianapolis Colts when officials found midway through the game that the Patriots were using footballs inflated under the league’s minimum-prescribed level.
     With the balls inflated to meet specifications for the rest of the game, the Patriots won the game 45-7 and then squeaked past the Seattle Seahawks a month later to win Super Bowl XLIX.
     Another two months had elapsed when an NFL-contracted investigator connected Brady to the deflated balls and the league suspended Brady on May 11 for four games.
     The players’ union balked that NFL Commissioner Roger Goodell, rather than an independent arbitrator, would preside over Brady’s appeal of that suspension, which the league upheld just this past Tuesday and asked a federal judge in Manhattan to confirm.
     Judge Kyle in Minnesota found Thursday that these factors and more require transfer of the union’s challenge to Manhattan.
     “Indeed, the court sees little reason for this action to have been commenced in Minnesota at all,” the four-page order states. “Brady plays for a team in Massachusetts; the union is headquartered in Washington, D.C.; the NFL is headquartered in New York; the arbitration proceedings took place in New York; and the award was issued in New York. In the undersigned’s view, therefore, it makes eminent sense the NFL would have commenced its action seeking confirmation of the award in the Southern District of New York. Why the instant action was filed here, however, is far less clear.”
     The NFL had cited Brady for “general awareness” that two members of Patriots equipment personnel underinflated the balls, citing its policy on Integrity of the Game & Enforcement of Competitive Rules.
     In its 54-page petition to vacate the suspension, meanwhile, the union noted District of Minnesota precedent rejects the league’s failure to put players on notice about this policy
     A Minnesota judge reached the precedent in question this past February in a case involving the state’s own Vikings running back Adrian Peterson.
     Goodell had suspended Peterson some months earlier after the player pleaded no contest to a misdemeanor child-abuse charge that he faced after using a “switch” from a tree to discipline his 4-year-old son.
     On review of that suspension, U.S. District Judge David Doty agreed with the union that the league had “simply disregarded the law of the shop” in retroactively applying its new Personal Conduct Policy to Peterson.
     The union contended that Brady’s suspension defies Peterson, along with to fundamental arbitral principles concerning procedural fairness and arbitrator bias.
     In Brady’s case, the league failed to give notice regarding either the disciplinary standards it would apply or the potential penalties, according to the union’s petition.
     It said that the Brady’s supposed “general awareness” of misconduct by other people is a disciplinary standard never previously applied to players in the NFL’s history.
     Player policies furthermore provide only for specified fines for any type of equipment violations, the union noted.
     The petition had noted as well hat the Competitive Integrity Policy that the league used to suspend Brady applies only to clubs – not players.
     As for Brady’s alleged noncooperation, the union noted that a fine is the only penalty that has ever been upheld in such circumstances.
     “But the award’s legal defects do not stop there,” the petition states. “The award ignores the law of the shop requirement of fair and consistent treatment by basing discipline on ball pressure ‘testing” that the NFL concedes did not generate reliable information because of its failure to implement any protocols for collecting such information. Additionally, the Award is the product of a fundamentally unfair process, and was issued by an evidently partial arbitrator who put himself in the position of ruling on the legality of his own improper delegation of authority in violation of the CBA. Each of these grounds independently requires vacating the award.”
     Barbara Podlucky Berens with Berens & Miller had filed the petition for the union.
     Judge Kyle ordered the case transferred to Manhattan under the first-filed rule.
     Soon after the order’s filing, U.S. District Judge Richard Berman in New York thanked Kyle for his speedy resolution of the petition and directed “all counsel and all parties … to tone down their rhetoric.”
     “The earth is already sufficiently scorched, in the court’s view,” Berman said, calling attention to the court’s rules on motion practice.
     Deflate-gate fallout has already cost the Patriots a $1 million fine, their 2016 first-round pick and 2017 fourth-round selection in the NFL draft.
     Brady, a four-time Super Bowl winner married to Brazilian supermodel Gisele Bundchen, is eligible to play Week 6 in Indianapolis against the Colts, the league said Tuesday.

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