Electing to Use Arbitration for your Business – What you can learn from Brady v. Goodell

In Litigation by Coolidge Wall

Did Tom Brady cheat? Is he guilty? Is Commissioner Roger Goodell a power mad dictator? I am just as curious as most sports fans to see how this soap opera plays out.

Recently a local radio station asked me to “guest” on a sports talk show to give my legal thoughts on a possible Brady v. Goodell Federal Court lawsuit. Ultimately I didn’t get my 4 minutes of local radio fame, and not because I would have been shy in front of the microphone. I was nixed after telling the station’s sports director that his viewers might not think that what I had to say was very interesting.

I explained that a court case brought by the Patriots quarterback would likely not address his guilt or even whether he was complicit in a scheme to deflate footballs. Any case that Brady’s lawyers might file to seek an injunction to stay his 4 game suspension would actually only be an appeal of the NFL’s arbitration decision. In cases where courts have reviewed an arbitrator’s decision, the issue of who is right and who is wrong rarely comes up at all.

Using arbitration as an alternative to the filing of a court case started becoming popular a couple of decades ago. Arbitration was deemed to be “business friendly” and as a result the mandatory use of arbitration to resolve disputes has now become a fixture in many vendor and customer contracts and even in employee agreements. Courts love arbitration because it relieves a judge’s already overburdened docket. The Federal government in the Federal Arbitration Act and most states (including Ohio) have adopted legislation endorsing and legitimizing binding arbitration as a means to resolve disputes outside the courtroom.

Arbitration does have advantages over litigation in some cases. But before agreeing to resolve business disputes by this process, clients must understand that arbitrations produce binding legal decisions that are very hard and nearly impossible to overturn on appeal. This is because courts limit the focus of any appeal to a determination of whether the overall arbitration process was fundamentally fair or if there was misconduct on the part of the arbitrator(s) so that the resulting decision was manifestly unfair.

So while sports fans might like to see a full blown and public jury trial on the issue of Brady’s guilt or innocence, if he files a court case challenging the NFL’s arbitration decision most likely the assigned judge (and not a jury) will only examine the fairness of the NFL’s process that led to Commission/Arbitrator Roger Goodell’s decision imposing a 4-game suspension. The issue of Brady’s guilt or innocence will not be heard nor decided.

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