Robert Boland: ‘Hard For NFL To Overturn This On Appeal’

In the end, Judge Richard Berman’s decision didn’t come down to innocence or guilt; it came down to fairness. And in that regard, the NFL was on the short end of the stick.

Does the league have a leg to stand on when its actions are interpreted as unfair?

In a word, no. In two words, not really.

“I think Berman’s decision becomes more difficult to overturn on appeal now because he looked so much at failures in the process,” sports lawyer and Ohio University professor Robert Boland said on CBS Sports Radio’s Tiki and Tierney. “Now historically, you can look at an arbitration decision and they don’t need to be fair; they just need to be clean, if you were to think about it that way. Perfect arbitration decision, not so much. But if there’s a clean process, you’re okay. Here, (he’s saying) the NFL messed up the process so bad along the way that it was unrecognizable and unfair. So I think it’s a very tough job for him to overturn. And here’s the one thing that maybe didn’t surprise me, but certainly he gave the NFL ample opportunity. He telegraphed this decision a long way by telling (them) to settle, by ordering the commissioner and Jeff Pash into his courtroom and giving them the time this week for the decision to drop. They certainly had an opportunity to settle it right up until Thursday morning.”

Some may argue that the NFLPA gave Goodell the power to be judge and jury, so they can’t complain and take legal action every time they disagree with the commissioner’s ruling. That’s a valid argument.

But there must be some semblance of fairness – even if that isn’t explicitly stated in the CBA.

“I think that (the league is) half right in that argument, and that would be their best legal argument – that an outcome that’s considered, or at least kind of set out in the CBA, is certainly allowable, and the court, rather than rejecting it, should actually affirm it,” Boland said. “The difference is, that you don’t get to give away every substantive right and you don’t get to mess the process up. There are some fundamental issues of due process and fairness – notice being one of them – and that was a key provision for Jeff Kessler to attack on behalf of Brady. The other being the ability to confront your witnesses and have a meaningful trial – and that’s another place where the NFL seemingly erred along the way. So the NFL in some ways over-investigated and over-tired this case. I think that Roger Goodell probably could have upheld a suspension simply by having Tom Brady and asking him what happened and saying he found him not credible – and evasive even. So a much quicker process could have been handled.

“We as lawyers always say a lot of times, the police arrest the guilty person, but they get off because they messed up the procedure,” Boland continued. “We win our cases because of procedure and I think that’s exactly what happened here – and because Judge Berman rooted this so much in procedure, it’s going to be very hard for the NFL to overturn this on appeal. I think really given the timing of it right now, it really takes it out of the 2015 season and it may be into the 2016 season or even beyond before we see it. So I think the NFL will probably appeal with great ferocity, but I’m not sure what an appeal really does to fundamentally change this circumstance.”

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