Deflategate: Tom Brady’s suspension will likely stick this time

A divided U.S. Court of Appeals panel upheld NFL Commissioner Roger Goodell's four-game suspension of Tom Brady for his involvement in "Deflategate," the label given to the New England Patriots' use of under-pressurized footballs in the AFC Championship game against the Indianapolis Colts in January of 2015.

The two-judge majority concluded that the commissioner had acted within his broad authority under the agreement between the league and the players to determine the appropriate level of punishment for conduct the commissioner considered "detrimental to the integrity of, or public confidence in, the game of professional football." The majority further found that the commissioner's determination "drew its essence" from the agreement.

New England Patriots’ Tom Brady
Getty Images
New England Patriots’ Tom Brady

In delivering their verdict, the judges wrote: "[W]e do not consider whether the punishment imposed was the most appropriate or whether we are persuaded by [Goodell's] reasoning. In short, it is not our task to decide how we would have conducted the arbitration proceedings, or how we would have resolved the dispute."

The court's ruling makes it far more likely that the commissioner will have virtually unfettered authority under the current contract between the league and the players to impose punishment without fear of meaningful review of his disciplinary decisions. It is only far more likely, rather than dead certain, because it is possible that other federal courts of appeal will apply these principles differently in future cases involving NFL discipline. Further review of this case is unimaginable. An eight-member Supreme Court has other things to do.

The result may be final, but that doesn't make it fair. Neither the agreement nor federal labor law gave the commissioner unlimited power. One example shows how the court of appeal's ruling insufficiently constrained the commissioner's disciplinary power.

The court majority recognized that Brady was "entitled to notice of his range of punishment." Brady's main challenge to the suspension was that he was not on notice that his limited participation in deflating the balls, even if true, could lead to anything more than a fine of several thousand dollars. That is the punishment the collective bargaining agreement — which the commissioner supposedly interpreted — imposes for a player's use of stickum, a substance a player used to enhance his grip on the ball.

"Further review of this case is unimaginable. An eight-member Supreme Court has other things to do."

The commissioner ignored this stickum policy in evaluating Brady's punishment — he didn't even mention it. Instead, the commissioner compared some level of participation in deflating a ball to a player's direct use of steroids to inflate muscles. Both acts, said the commissioner, reflect "an improper effort to secure a competitive advantage in, and threaten the integrity of, the game." That justified similar punishment for both offenses.

Huh? At the highest level of generality, there is some conceivable similarity between even the most extremely different cases or concepts, but this was a serious reach. The commissioner's failure to distinguish or even to mention in his ruling the situation most apparently similar to the one he was reviewing suggests that all that mattered to him was justifying his own disciplinary call.

The court majority dismissed this as "much ado about very little because the commissioner could have imposed the same suspension without reference to the League's steroid policy." True, but the commissioner did refer to the steroid policy. The dissenting judge was right that the commissioner thereby confirmed that, rather than exercising his duty to interpret the collective bargaining agreement between the parties, the commissioner was imposing "his own brand of industrial justice." The law prohibits that. This was not a "pure sports question," as the majority said it was. It was a question of law. That's what courts do.

This was only one of several serious flaws in the commissioner's suspension ruling. The Wells investigative report found that Brady was "at least generally aware" that Patriots staff was deflating balls. The commissioner transformed that finding of general awareness into a conclusion that Brady induced and rewarded the deflation of the footballs by giving the responsible staff valuable memorabilia. Close enough, said the appeals court.

The Court of Appeals ruling is not a vindication of Commissioner Goodell, nor is it a conclusive indictment of Tom Brady. The decision came down to how much deference the judges owed Commissioner Goodell in issuing his unprecedented punishment of one quarterback for his particular conduct in this particular game. "It is ironic that a process designed to ensure fairness to all players has been used unfairly against one player," said the dissenting judge. Future justice will come only in future cases from changes in the process worked out at the bargaining table.

Commentary by Dan Eaton, a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek, where his practice focuses on defending and advising employers. He also is a professor at the San Diego State University College of Business Administration where he teaches classes in business ethics and employment law. Follow him on Twitter @DanEatonlaw.

For more insight from CNBC contributors, follow @CNBCopinion on Twitter.