The NFLPA keeps sending shots over the bow of Roger Goodell as the Ginger Hammer mulls Tom Brady’s appeal.

On Tuesday, a union source told an ESPN/ABC legal analyst the union would take Brady’s case to court if his four-game suspension wasn’t overturned entirely.

Later in the day, Adam Kilgore of The Washington Post had an NFLPA source explaining where and how the union’s attorneys plan to attack the Goodell’s decision if Brady’s suspension isn’t overturned.

The source laid out five points for Kilgore:

• The NFL policy for handling equipment in the NFL is in the club manual and pertains to club personnel, not players. The NFLPA would argue that the NFL suspended Brady four games under a policy that doesn’t apply to him.

• The Wells Report, the investigation on which the NFL based its suspension, alleged Brady was “at least generally aware” that footballs had been tampered. The NFLPA would argue that the “general awareness” standard has no legal merit – either Wells found direct evidence, or he didn’t.

• The NFLPA would argue Brady – given the rules in the club manual did apply to him – received a punishment without precedence. Under the collective bargaining agreement, players have a right to know specific punishment for specific violations.

• The NFLPA plans to cite a specific example in oral arguments in an effort to prove Brady’s suspension was arbitrary. Last year, the league caught the Minnesota Vikings tampering with footballs by placing them in a dryer, a violation of the club manual. The team, the NFLPA source said, received a letter from the league and no further reprimand.

• The NFLPA would mount an argument against the procedure the Wells Report used to measure the inflation and deflation of footballs, saying there was no previous standard.

But before the union’s lawyers can get a judge to consider those fairly logical and compelling counterpoints, they will have to get a judge to question Goodell’s right to serve as arbitrator. That right was collectively bargained between the league and the NFLPA in 2011. Legal analysts I’ve spoken to have mentioned that being the biggest stumbling block for Brady’s team in court.

Even though there are so many aspects of the NFL’s ruling which defy common sense – from the seeming bias of Wells’ investigation through the over-the-top punishment – judges aren’t inclined to overturn arbitrator’s decisions if that arbitrator was given the collectively bargained right to hear the appeal.

In an effort to show Goodell was unfit to hear the appeal – even though he had the “right” to – the NFLPA will undoubtedly point to Goodell handpicking Wells and the law firm of Paul, Weiss (an NFL friendly-group) and deciding on the discipline for Brady.

It will also look at Goodell trying to have it both ways with the administration of the discipline. After the Wells Report was released, Goodell stated the NFL VP of Football Operations Troy Vincent would be deciding on the discipline. When Brady was punished, the NFLPA pointed out that Goodell is the one who must dole discipline according to the CBA. Nobody else. Goodell has since tried to say that he authorized Vincent to make a recommendation but that it was Goodell who delivered the punishment.



The NFL tried mightily to cover itself procedurally so that whatever it ruled wouldn’t get overturned on appeal. But even to a layperson, it’s clear there are holes in the protection, so to speak. The NFLPA is pointing those out now, perhaps in hopes that Goodell will give the PA a win it won’t have to go to federal court to secure.