In a decision today, the Second Circuit, by a 2-1 vote, reversed Judge Berman’s ruling in the DeflateGate case, effectively reinstating Tom Brady’s four-game suspension for his role in deflating footballs used during the 2015 AFC Championship Game.

Tom Brady and the NFL Player’s Association focused their appeal on the fact that, based on the NFL’s written policies, Brady had no prior notice that a first-time violation could result in anything more than a fine, but the Second found that the NFL’s reading of those policies was justifiable, and met the minimal standards for confirming an arbitration award:

The Association primarily relies on a statement in the “Other Uniform/Equipment Violations” section, which provides that “First offenses will result in fines.” It argues that equipment violations include “ball or equipment tampering” and “equipment tampering such as ball deflation.” But the Association finds language in the “Other Uniform/Equipment Violations” provision that we cannot locate. The provision says nothing about tampering with, or the preparation of, footballs and, indeed, does not mention the words “tampering,” “ball,” or “deflation” at all. Moreover, there is no other provision of the Player Policies that refers to ball or equipment tampering, despite an extensive list of uniform and equipment violations ranging from the length of a player’s stockings to the color of his wristbands.

On the other hand, Article 46 gives the Commissioner broad authority to deal with conduct he believes might undermine the integrity of the game. The Commissioner properly understood that a series of rules relating to uniforms and equipment does not repeal his authority vested in him by the Association to protect professional football from detrimental conduct. We have little difficulty in concluding that the Commissioner’s decision to discipline Brady pursuant to Article 46 was “plausibly grounded in the parties’ agreement,” which is all the law requires.

In dissent, Judge Katzmann faulted the NFL for (among other things) imposing a four-game suspension when a violation similarly aimed at improving the grip on a football – placing a substance called “stickum” on the ball – would result in only a fine of $8,268:

I am unable to understand why the Commissioner thought the appropriate penalty was a four‐game suspension and the attendant four‐game loss of pay, which, in Brady’s case, is far more than $8,268. The lack of any meaningful explanation in the Commissioner’s final written decision convinces me that the Commissioner was doling out his own brand of industrial justice.

Our prior posts on the case are here.