Ted Olsen, who is serving as the lead counsel for Tom Brady in the quarterback’s fight against the reinstatement of the his suspension, joined Ordway, Merloni and Fauria Thursday to discuss his client’s recent appeal.
Brady and his team are now awaiting word on whether the 2nd U.S. Circuit Court of Appeals will grant a re-hearing.
“We think we have very, very strong reasons here,” Olson said. “We acknowledge that courts of appeals don’t usually grant re-hearings and the Supreme Court doesn’t usually grant anything more than a small percentage of the cases that it takes, but those statistics are misleading because it depends upon the case.
“Here’s a situation where a huge injustice is manifestly done and the commissioner, who commissioned this report which you’ve discussed many, many times, calling it neutral is just a complete misnomer. It wasn’t a neutral investigation. Then the commissioner reviewed his own investigation and imposed discipline. Then when the appeal came along, he appointed himself to do an appeal and then he decided on different grounds to sustain the discipline that he had previously imposed based upon obviously pre-determined judgement, and he failed even to mention the provisions of the collective bargaining agreement that related to equipment, which is obviously what was involved in this case.
“We think this is important to collective bargaining agreement[s] and to employers and employees everywhere.”
On the subject of the power wielded by commissioner Roger Goodell, Olson said that the NFLPA granting him that power in the collective bargaining agreement is a “legitimate concern.”
“In fact, the majority on the panel — the two judges that decided against Tom — basically decided that,” Olson said. “They said, ‘Look. It’s an arbitration and you’ve granted a lot of discretion to the commissioner and that’s all it’s going to be. We pointed out, however, that when the commissioner decided to hear the appeal himself, he was responsible to act in a fair and neutral fashion and provide an unbiased review of things, and he was supposed to look at the record, look at the decision that he made, and consider that and not come up with a new analysis that wasn’t part of the decision in the first place.
“So he came up with something completely new. We make the point that that’s inconsistent with collective bargaining principles decided by the Supreme Court and other circuits and that when there’s a specific provision in the collective bargaining agreement — as there is here — about equipment that is directly pertinent to the case, the commissioner had to at least mention that and explain why in the world that was not pertinent, why he departed from that equipment violation provision completely, which would have required a fine — a relatively modest fine, even if the evidence was against Tom, which of course it isn’t — but he ignored that principle, too. He ignored a provision in the collective bargaining agreement that was directly pertinent, and he had a responsibility to discuss it.”