The Puzzle of Deflategate: Private Agreements and the Possibility of Biased Justice

Abstract

In this Article, I study the implications of National Football League Management Council v. National Football League Players Association, the recent decision in which the United States Court of Appeals for the Second Circuit dealt New England Patriots star quarterback Tom Brady a stinging defeat in his so-called "Deflategate" case against the National Football League ("NFL"). I do so because, although most of the court's opinion follows well-established doctrine, a crucial portion of decision quickly glosses over important unanswered questions about federal arbitration law and the enforceability of pre-dispute arbitration agreements that contemplate the appointment of an evidently partial arbitrator. This makes the implications of the Second Circuit's decision unclear, and it exposes how the Supreme Court's basic account of federal arbitration law has paid insufficient attention to the frequent and overbearing imposition of arbitration on relatively unsophisticated parties through contracts of adhesion. Indeed, I shall argue that National Football League Management Council (to which I will give the shorthand "NFLMC") must be understood and interpreted in a limited and careful way to avoid damaging the interests of ordinary consumers and employees in a serious and unfair way.

In the pages that follow, I will explore how strongly federal arbitration law, particularly the Supreme Court's conflation of adhesion with ordinary contracts, supports potentially troubling implications of NFLMC. I conclude that NFLMC was correctly decided, but that a nuanced understanding of Supreme Court precedent actually gives NFLMC influence over a relatively narrow set of future cases, thereby limiting its potentially troubling implications. I support this conclusion by showing that the Supreme Court's rationale for conflating adhesion contracts with ordinary contracts does not support the consistent enforcement of all agreements that contemplate evidently partial arbitrators. Instead, despite outward appearances to the contrary, federal arbitration law accepts the appointment of evidently partial arbitrators only when the parties genuinely understand and agree to that arrangement. This rules out the use of adhesion contracts to maneuver ordinary individuals into arbitration before improperly biased arbitrators.