Jie Tan, Ph.D. Esq. Wechat: JTLAW1827, Author at JT Law Office

On September 3, 2015, Tom Brady of New England Patriots won a big legal victory over his four-game suspension imposed by Roger Goodell.

The simplest explanation for Judge Berman’s decision is that the NFL failed to show that it applied Article 46 of the collective bargaining agreement in a fair and consistent way. Federal judges rarely vacate arbitration awards yet Judge Berman felt compelled to vacate Brady’s suspension after finding so many problems in the NFL’s application of Article 46.

First it relates to Brady’s arbitration hearing with Goodell on June 23 where Goodell denied a request by NFLPA attorneys to question NFL general counsel Jeffrey Pash and to access the league’s investigative notes. Mr. Jeffrey Pash edited the Wells Report before its release. Judge Berman regarded Goodell’s decisions on these issues as preventing Brady from enjoying a credible opportunity to make his case. If Brady can’t confront his accuser and study the evidence used to punish him, how can he effectively defend against the accuser’s accusations? Judge Berman stressed that denial of access to key witnesses can be grounds to vacate an arbitration award.

Secondly the notification given by NFL is confusing which failed to explain under which set of rules that Brady was being punished. The Wells Report used the league’s Integrity of the Game and Enforcement of Competitive Rules policy, a document not collectively bargained with the NFLPA, to find that it was “more probable than not” that Brady had “general awareness” of a football scheme supposedly hatched by two equipment assistants.

But in his testimony NFL executive vice president Troy Vincent referenced the Game-Day Operations Manual, also not collectively bargained with the NFLPA. as a crucial document in finding Brady at fault.

Judge Berman seemed perplexed as to what degree non-collectively bargained documents should be considered sources of authority to punish Brady.

Third, Brady had not received adequate notice of discipline. The steroid policy, wrote Judge Berman, “cannot reasonably be used as a comparator for Brady’s four-game suspension for alleged ball deflation by others . . . [the steroid policy sets forth procedures] none of which has anything to do with Brady’s conduct and/or his discipline.”

Fourth, there is lack of consistency in NFL discipline. In prior instances of players being implicated by equipment tampering, those players were fined, warned or not punished in any way. It was never made clear why Brady was treated differently and significantly worse.

Lastly, Goodell as arbitrator was clearly not neutral. While Article 46 permits Goodell to serve as the arbitrator for player appeals, Judge Berman noted that the “law of the shop”—which compels consistency and fairness in arbitration awards—bars Goodell from rendering a decision that may have been compromised by bias.

9月3号，新英格兰爱国者球队明星后卫Tom Brady 赢了。这回是法庭里。法官Berman取消了NFL仲裁员对他停赛4场的惩罚。

联邦法庭很少取消调解员的决定。不过这回法官发现NFL仲裁过程有很多程序问题，整个仲裁过程，使用的处罚规则，仲裁证据，标准都前后不一致，而且仲裁员Goodell 也缺乏中立。Brady 事前也没有被足够通告。这样的结果，是无法保证公平的。

Choice of law provisions in contracts are generally enforced by the courts. However, recent Brown & Brown, Inc. v. Johnson, 25 N.Y.3d 364 (2015) New York Appeals Court decision makes people think again. This case concerns an employment agreement that includes a Florida choice of law provision. It contains a non-solicitation provision prohibiting the employee for a two-year period following termination of her employment from soliciting, accepting or serving any person or entity that was an account or customer of the employer. Both the employer and the defendant employee in this case are in New York. Less than one month after being terminated, the defendant employee began working for a competitor of her prior employer. The plaintiffs commenced this action, alleging breaching of contract.

The Court compared the laws of New York and Florida with respect to restrictive covenant, finding that enforcing the covenant under Florida law would be against the against public policy.

Under Florida law, an employer only needs to make a prima facia showing that the restraint was necessary to protect a legitimate business interest, the burden shifts to the employee to establish that the restraint was overbroad or unnecessary. However in New York, the employer needs to show the restraint is reasonable that (1) it is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose und hardship on the employees, and (3) is not injurious to the public. A violation of any prong renders the covenant invalid. The employer must prove all three prongs before the burden shifts to the employee. Thus Florida law explicitly prohibits a court from considering the second prong. In addition, New York law requires convenience not to compete to be construed strictly, while Florida law construes such covenants in favor of protecting an employer’s interest and prohibits a court from construing the provision narrowly or against the drafter. Thus the Court of Appeals concluded that Florida law focused almost exclusively on the employer’s interest, rendering the Florida choice of law provision unenforceable.

现在的各个公司的雇佣合同中，都会要求雇员在解除雇佣关系几年内（一般是两年），不能从事与本公司相竞争的下一个工作。合同一般也会明确规定，如果发生诉讼和争执，以哪个州的法律为准。可是美国州与州的法律，在对待非竞争条款上有很大差别，不能完全根据合同的字面内容来理解合同的条款。

举例来说，纽约州和佛罗里达州对非竞争条款的执行就有很大的差别。纽约州的法律更保护雇员，而佛罗里达州的法律更偏向雇主。在佛罗里达州，雇主只需要证明非竞争条款是出于保护公司商业利益的需要就可以了，雇员要挑战这一条，则必须要证明该非竞争条款限制太宽和太不必要。而在纽约，雇主需要证明三大的方面，（1）该非竞争条款限制是为保护雇主合法商业利益；（2）该非竞争条款限制不会造成该雇员生活困难；（3）该非竞争条款限制不会损害公众利益。纽约法律也要求严格解释非竞争条款限制，而佛罗里达州法庭对非竞争条款限制解释就相对宽松。

一般来说，如果合同条款中指定按某州法律解释执行合同，接案法庭也不会有什么问题。但是在纽约和佛罗里达州对非竞争条款限制法律相差如此大的情况下，纽约上诉法院最近裁决，纽约法院如果执行按佛罗里达州法律解释合同条款的协议会违反公共政策。换尔言之，非竞争条款限制不可能在纽约州按佛罗里达州的法律执行，即使合约中规定该合同按佛罗里达州的法律执行，该条款也无效。详见Brown & Brown, Inc v. Johnson, 25 N.Y.3d 364 (2015).