Published on: August 26, 2015
By Ed Allcock
Everyone that knows me, knows that I am and have always been the biggest Patriots fan. As a fan, the NFL’s witch hunt against its best player, New England Patriots QB Tom Brady is maddening. As a lawyer and litigator the legal battles that have ensued are fascinating and enlightening and provide keen insight into the legal system which can benefit every condominium association.
Takeaway #1: Don’t Agree to Arbitrate Disputes.
While arbitration is touted by many as a quicker more efficient means to resolution of disputes, Brady v. NFL shows that the arbitration process is not always fair. Arbitrators are not always impartial or fair. Many arbitration agreements provide that each side picks one arbitrator and then the two select a third. By definition, at least two of the three are not partial.
Courts have books of rules designed to ensure fairness, from procedural to evidentiary matters. Arbitrators often relax these rules. While judges and juries may not always get the rules right or interpret them consistently, a party is more likely to get a fair shot in a Court with rules and process than in a forum that relaxes or overlooks the rules.
What is apparent from Brady v. NFL, is the standard to overturn an arbitration decision is very difficult. While the same holds true for a judge’s or jury’s decision, the Court system does have an Appeals Court that is set up to do just that. When possible, condominium associations should not have arbitration provisions on their documents or contracts. Any party can agree to arbitrate a dispute after the dispute arises, but mandatory arbitration can tie a party into an unfair process that they have difficulty getting out of, just ask Tom Brady.
Takeaway #2: Give Notice of Violations and Allow for Due Process and Fundamental Fairness.
A major component of Brady’s lawsuit is that he was not on notice that he could be suspended for an alleged equipment violation (the NFL player manual indicates that a first offense is a maximum fine of $25,000) or for not handing over his phone (more on this below). Condominium associations should take this to heart. Condominium associations should spell out, as best they can, what a unit owner can be fined for. Fine schedules are also advisable, a $1,000 per day fine for a first offense of something that is not spelled out as a rule violation is not likely to hold up.
A second component of Brady’s lawsuit is that he was denied fundamental fairness, including an opportunity to question NFL counsel Jeff Pash, who supposedly was a co-independent investigator with Ted Wells and who apparently edited the Wells Report. Many condominiums boards simply witness a violation and send a letter. Condominium boards would be well advised to invite the offender to their next meeting and give the unit owner an opportunity to be heard as why they should not be fined. Condominiums may find that the issue can be resolved at the meeting, but if not, that the fine may be looked upon more favorably where the unit owner was given a due process hearing. Some states, like Rhode Island, actually require a due process hearing prior to the levy of fines. Bottom line, don’t be Roger Goddell. We all know Tom Brady was not gotten a fair shake by the NFL. Condominium board’s should think of that when they are considering violations or fines; am I being a stooge like Roger Goddell or is this unit owner being treated like Tom Brady. If you can answer no to those questions, then the board is probably acting fairly.
Takeaway #3: Don’t Text or E-mail About Matters That Are Likely To Result In Litigation.
The urge is hard to resist and not even I can resist it. Tom Brady could not resist it nor could Jastremski and McNally. Lawyers will seek and obtain e-mails and text messages and take e-mails and text messages out of context (text messages often have no context to begin with) and will use them against you. Tom Brady and the Patriots have learned that lesson the hard way.
Deleting them is of no use as they can often be recovered. Resist the urge, don’t do it, unless you want to ruin your case. Condominium board members have to know and should know when they are facing a situation that could turn into litigation.
Takeaway #4: Don’t Destroy Evidence.
Tom Brady’s destruction of his phone served as the perfect platform for the NFL to distract from the fact that they had no evidence whatsoever that Tom Brady did anything wrong. If the other side has nothing, don’t give them something to argue about, instead give them everything you’ve got. What you think is relevant or a smoking gun, a lawyer or a judge might not even consider relevant. Don’t delete e-mails or throw away records that might be pertinent to the issue. Courts have very serious rules about the destruction of evidence that can result in sanctions or even the loss of a case. Often times it comes up innocently and involves the repair of a construction issue or defect. Condominiums should invite the other side to view and inspect the defect or preserve it physically or in photograph or video form.
Takeaway #5: Don’t Be a Phony Like The NFL.
The NFL has more leaks than the Titanic. They leak false information to try their case in the Court of public opinion. Ultimately that backfires. While every condominium board has to engage in some level of politicking, stick to the facts, exaggerating about the facts (i.e. that balls are deflated more than 2 psi) is only going to come back to haunt you politically and when you eventually get to Court.
Also don’t be a phony when it comes to settlement. If a condominium is ordered to a settlement conference or attends a mediation, be prepared to resolve the case fairly on terms that recognize a real compromise. The NFL’s insistence that Brady accept the findings of the Wells Report is counterproductive and indicative that it has no real intent to settle the case. Condominium boards should go into settlement talks or discussions with an open mind and prepared to compromise or not go at all. Just don’t be a phony like the NFL.
Takeaway #6: Don’t make Tom Brady Mad.
Okay, I know I said I only had five takeaways, but I can’t resist. Why would the NFL and the other owners want to make the greatest quarterback that ever lived mad. Getting him mad just gets him closer to that fifth ring. What was the NFL thinking? There is nothing better than an edge and a chip on your shoulder. Tom Brady has that just from being drafted in the 6th round (199) overall. Personally, I can’t wait to see him on the field against the Steelers on September 10th (following his inevitable Court victory), right after the Patriots raise their fourth banner. Go Pats! Free Brady and Defend your Title.