Now a symbol off the field, too.

Photographer: Grant Halverson/Getty Images

The Rule of Law Wins One for Tom Brady

Cass R. Sunstein is a Bloomberg View columnist. He is the author of “The World According to Star Wars” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
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Tom Brady is, of course, the greatest quarterback who ever lived. Anyone who questions that, or accuses him of the slightest wrongdoing, is biased and untrustworthy. 

OK, I'm a New England Patriots fan, and inclined to celebrate Thursday's ruling by Judge Richard Berman, which vacated NFL Commissioner Roger Goodell's decision to suspend Brady for four games. But football aside, the decision offers a general lesson that even Brady-haters should celebrate. It involves the rule of law. 

Many people think that the concept has to do with democracy or liberty, or that it requires free markets. But it's much narrower than that. Reduced to its essentials, the rule of law has just two components. First, the law involved has to be clear and comprehensible, so that people can know, in advance, on what grounds they might be punished. Second, people generally have a right to be heard, and that requires notice of the charges against them, and a fair opportunity to rebut those charges before an unbiased tribunal. 

Under American law, both federal and state governments must respect the rule of law, which is codified in the due process clauses of the Fifth and 14th Amendments. But -- and many people find this surprising -- the Constitution does not apply to private organizations such as General Motors, Google, the Washington Post and the National Football League. 

Fortunately, national labor law and the Federal Arbitration Act go some way toward filling this gap. Courts are authorized to review arbitrators' decisions, and arbitrators must respect collective bargaining agreements. As a result, many employees have a legal right not to be treated arbitrarily. They are entitled to notice of the charges against them, and they have a right to rebut those charges. 

Which brings us to Tom Brady. Judge Berman had no occasion to contest the NFL's principal finding: that it was "more probable than not" that Brady "was at least generally aware" that two low-level Patriots employees had deflated footballs used in the AFC championship game. The judge's objection was that the NFL had failed to comply with the rule of law. 

Brady was never given fair notice that for what the NFL deemed his "general awareness" he could be suspended for four games. To this objection, Commissioner Goodell responded, somewhat awkwardly, that under the collective bargaining agreement, players could receive a four-game suspension for steroid use, which, he said, was "the closest parallel."

Judge Berman was unconvinced. The NFL's steroid policy was highly specific, a result of collective bargaining and accompanied by procedural safeguards. But no NFL player was on notice that he could be punished as if he had used steroids for having "general awareness" of other people's inappropriate activities. 

Judge Berman stressed that a "rule must clearly and unambiguously establish the scope of prohibited conduct, as well as the consequences of violations, in order to be enforceable." 

So Goodell had to fall back on the NFL's general policy, stated in the collective bargaining agreement, forbidding players to engage in any conduct that is "detrimental to the integrity of, or public confidence in, the game of professional football." From the standpoint of the rule of law, that's alarmingly broad discretion. 

Judge Berman responded that the collective bargaining agreement also contains specific policies for equipment violations, which do not punish "general awareness" of violations by others. In his view, the "detrimental conduct" standard cannot override more specific policies by giving the commissioner the power to impose suspensions whenever he sees fit. 

The NFL has said it will appeal Judge Berman's decision, and no one should rule out the possibility that an appellate court will accept the commissioner's broad reading of the "detrimental conduct" standard. But that's unlikely. American traditions rebel against open-ended discretion on the part of those with the authority to impose punishments. 

Tom Brady has enjoyed countless victories on the football field, and he's long been a symbol of grace under pressure. Having now won in federal court, he's also become an unlikely symbol for something even better: the rule of law.

(Corrects sixth paragraph to specify that the deflated footballs were used in the AFC championship game.)

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Cass R Sunstein at csunstein1@bloomberg.net

To contact the editor responsible for this story:
Mary Duenwald at mduenwald@bloomberg.net