Deflategate: What's the Steelworkers Trilogy Got to Do with it?

Berkeley Journal of Entertainment and Sports Law, Vol. 7 (2017)

WVU College of Law Research Paper Forthcoming

31 Pages Posted: 13 Jan 2021

See all articles by Anne Marie Lofaso

Anne Marie Lofaso

West Virginia University - College of Law

Date Written: June 30, 2017


Tom Brady elicits strong feelings of love from his fans, and equally strong feelings of hatred from nonfans. These polarized feelings have facilitated divided opinions about the Deflategate scandal; the strongest of which called for the punishment of Tom Brady, the Patriots, and some Patriots' officials for allegedly cheating in a playoff game. This article is not about the merits and demerits of that case. This article instead explains why, regardless of the merits of that case, NFL commissioner Roger Goodell failed to execute industrial due process and industrial equal protection, to which Brady was entitled.

This Paper proceeds in three parts. Part I of this Article provides factual background necessary for understanding this case. This background includes: the procedural history of the case, including the Pash/Wells investigation; the grievance-arbitration proceedings; and the eventual court review of the arbitration proceedings. Part II starts with a brief history of general labor arbitration. It then compares the typical grievance-arbitration mechanism with the procedures found in the NFL Player's Association's (NFLPA) collective-bargaining agreement. Special attention is spent on the NFL-NFLPA's Article 46 procedures because those procedures were invoked in the Deflategate arbitration. Deflategate is one example of how the NFLPA's labor arbitration rules (specifically Article 46) facilitates the immediate escalation of certain types of grievances to the highest level of authority which may violate players' due process and rights to equal protection. Part III focuses on the en banc appellate review portion of the Deflategate case. Part III A discusses the standards for obtaining en banc review in the courts of appeal. Part III B discusses the labor law principles necessary for resolving Deflategate. This section focuses on the eponymous Steelworkers Trilogy - a series of three grievance-arbitration cases involving the United Steelworkers union decided on the same day over a half-century ago. From those cases, I distill ten principles of labor arbitration, and three values underlying grievance-arbitration, industrial peace, participation, and fairness. In Part III C, I detail the Second Circuit's decision, and explain how the court's decision to uphold Commissioner Goodell's arbitration decision conflicts with the Steelworkers Trilogy.

Keywords: NFL, Patriots, Tom Brady, Roger Goodell, Pash/Wells, arbitration, NFLPA, grievance-arbitration, labor dispute, Taft-Hartley Act, deflategate, Steelworkers Trilogy

JEL Classification: K31

Suggested Citation

Lofaso, Anne Marie, Deflategate: What's the Steelworkers Trilogy Got to Do with it? (June 30, 2017). Berkeley Journal of Entertainment and Sports Law, Vol. 7 (2017), WVU College of Law Research Paper Forthcoming, Available at SSRN:

Anne Marie Lofaso (Contact Author)

West Virginia University - College of Law ( email )

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