Patriots quarterback Tom Brady and the NFL Player’s Association filed their appeal brief yesterday with the Second Circuit, responding to the initial brief filed by the NFL.  The brief from Brady and the Player’s Association argues that there was a bargained-for policy for first-time equipment violations to result only in fines, and that Judge Berman correctly ruled that imposing a four-game suspension on Tom Brady violated that policy and failed to give Brady prior notice of the possibility of a suspension:

For decades, the NFL has annually provided all players with the “League Policies for Players”—hundreds of pages defining myriad types of misconduct that the Commissioner deems “conduct detrimental.”  Further, for many “conduct detrimental” infractions, the NFL and the NFLPA have collectively bargained specific penalties, and the NFL has provided notice of those penalties in the applicable Player Policy. That is the situation here.

In the “Discipline for Game-Related Misconduct Policy” and its “equipment violations” provision, the NFL repeatedly provides notice—in bold, italicized type —that “First offenses will result in fines.”  Specific fine amounts have been collectively bargained with the NFLPA. But Goodell ignored the collectively bargained penalty in the applicable Player Policy, and the notice it provided, and affirmed Brady’s unprecedented suspension for an alleged equipment violation . . . .

Remarkably, [the NFL’s written ruling of the suspension] made no mention of the “Discipline for Game-Related Misconduct Policy,” the collectively bargained fine schedule for “equipment violations,” or the NFL’s notice to all players that “First offenses will result in fines.”  Instead, he compared the alleged infraction to first-time steroids use—which is subject to a collectively bargained four-game suspension—and substituted his own brand of industrial justice for the applicable bargained-for fine. Not surprisingly, the district court vacated the award, holding . . . that it violated the “essence of the [agreement]” — including the notice requirement “at the heart of the CBA” . . . .