Former US solicitor general Theodore Olson, who now heads Tom Brady’s legal team, appeared on ESPN on Monday to discuss the decision to file an en banc appeal of Brady’s suspension to the US Court of Appeals for the Second Circuit.
Olson wasted little time questioning the validity of the process by which NFL commissioner Roger Goodell upheld the initial four-game suspension.
“Commissioner Goodell appointed himself as the appellate judge so to speak, an arbitrator, which is supposed to be a neutral person,’’ Olson said. “Instead, what the commissioner did is change the decision, and decide on different grounds, different facts, on a different basis. [That’s] not what an appellate judge does at all, and in the process, he overlooked the provisions in the collective bargaining agreement, or ignored them, having to do with equipment issues, which is what this case was all about.’’
For the 2015 season, the NFL released a “schedule of fines.’’
A player caught with foreign substances on his body or uniform would be fined $8,681 for a first offense, $17,363 for a second. Other uniform or equipment violations result in a $5,787 fine for the first offense, $11,576 the second time.
“He should have looked at and evaluated the punishment that is prescribed in the collective bargaining agreement with respect to equipment,’’ Olson said.
Article 46 of the CBA states that Goodell has the authority to impose discipline for what he deems a violation of the integrity or public confidence in the NFL, but Olson believes there are limits.
“If he’s going to exercise those broad powers, he has a responsibility under the collective bargaining agreement to do so in good faith,’’ Olson said.
“That means he would have to look at the provisions that are obviously appropriate to questions involving tampering with equipment.’’
Olson was asked how fast the process would be, and if the legal team would apply for a stay if a decision has not been rendered by the time the season starts.
“We would expect that it would move rather quickly,’’ he said. “The court is aware of the schedule and aware of the timing issues. If it is necessary and it pushes back close to the beginning of the season, of course we would consider and probably apply for a stay, and I would think that the court would grant it, freeze the status quo, and allow things to continue until a decision on the merits is made.’’
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