Judge Berman recognized that the standard for review of arbitral awards under the FAA 9 U.S.C. Section 10 is a deferential one, yet nonetheless he noted that “the deference due an arbitrator does not extend so far as to require a district court to countenance, much less confirm, an award obtained without the requisites of fairness or due process.” Judge Berman focused on numerous instances in the arbitration where Brady was not given a fair hearing, including the fact that Brady was never provided with the “Policy on Integrity of the Game & Enforcement of Competitive Rules,” nor was he ever advised that he would be subject to suspension from the game for “general awareness” of ball deflation by others.

Judge Berman focused on the fact that Goodell had likened Brady’s conduct to the use of anabolic steroids, a practice that had in the past subjected NFL players to suspensions from games, a comparison he soundly rejected. He also found that Brady had been denied the opportunity to examine the co-lead investigator in the case, Jeff Pash, which was not in line with NFL precedent wherein players must be afforded the right to confront their investigators. Judge Berman ruled that the denial of that opportunity was “fundamentally unfair” and in violation of FAA Section 10(a)(3), which resulted in prejudice to Brady. The Judge also found that Brady was improperly denied the opportunity to have equal access to investigative files, and that this fact was especially noteworthy as Paul Weiss, who participated in preparing the “independent” Wells report, represented the NFL before the Judge and actually cross-examined Brady. The Court ordered the award to be immediately vacated. The NFL is appealing Judge Berman’s decision.

This case is noteworthy as the arbitration process worked as intended. The Court made it clear that while deference is clearly given to arbitral awards, it will not be so when a party is not given basic procedural fairness. So while there will still be those who continue to obsess about deflated footballs, the real win in this process was for the fundamental integrity of arbitration. And that is a touchdown not only for those who work in the arbitration field, but the users of the process as well.

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