What Tom Brady Just Taught Us About Arbitration Clauses

Yesterday, U.S. District Court Judge Richard Berman vacated Tom Brady’s four-game suspension in what has been infamously titled “Deflategate“.  The 40-page opinion was striking not in its commentary over whether Tom Brady did or did not conspire to or deflate footballs in an NFL game, but rather, like any citizen, Tom Brady was entitled to a fair arbitration.

Judge Berman more or less accepted the arbitrator’s “…facts as the arbitrator found them.” citing to Westrbook Corp. v. Daihatsu Motor Co., Ltd. 304 P.3d 200, 213 (2d Cir. 2002), but ruled Brady was given “inadequate notice of his potential discipline and alleged misconduct”, denied the opportunity to examine lead investigators and NFL Executive Vice President and General Counsel Jeff Pash, and “denied equal access to investigative files, including witness interview notes.[1]

Arbitration clauses, such as the one Brady was subject to under the NFL Players Collective Bargaining Agreement limited Brady in access to evidence and the ability to cross-examine witnesses. These rights are paramount to the civil justice system but are often waived through arbitration clauses appearing in employment contracts, consumer transactions, and nursing home care. Yesterday’s ruling will have implications beyond just a few deflated footballs, but refocus attention to the necessity of a fair shot at justice.

[1] Judge Berman’s ruling cited to via the New York Times, available here.