On Tuesday, the NFL issued a final written decision denying the NFL Players Association’s appeal of Tom Brady’s suspension for his alleged involvement in “Deflate-Gate.” The decision is signed by NFL Commissioner Roger Goodell. Within hours of the decision, the NFL filed a lawsuit on its home field in the United States District Court for the Southern District of New York. The NFL’s five-page lawsuit asks the court to confirm the NFL’s decision. On Wednesday, Brady filed a fifty-four page complaint in the United States District Court for the District of Minnesota asking the court to vacate, or overturn, the NFL’s decision.
Despite the competing lawsuits, only one of these federal courts will decide the case. Federal courts generally follow what is called the “first-filed rule,” which states that when two lawsuits have been filed in different courts relating to the same dispute, the first-filed suit has priority, and the later-filed suit should be dismissed or stayed. There are exceptions to this rule, but the court in which the first-filed suit is pending gets to decide whether an exception applies.
The Southern District of New York will analyze two potential exceptions to the first-filed rule: (1) whether special circumstances warrant giving priority to the second suit; and (2) whether the balance of convenience favors the second-filed action. See Employers Ins. of Wausau v. Fox Entm’t Group, Inc., 522 F.3d 271, 274 (2d Cir. 2008).
Special circumstances exist when a lawsuit is filed in response to a direct threat of litigation that gives specific warnings as to deadlines and subsequent legal action. It was widely reported that Brady intended to file a lawsuit if the NFL upheld his suspension, so this factor likely weighs in favor of transfer of the dispute to Minnesota.
Special circumstances also exist when the first-filed case was the result of a practice known as “forum shopping” whereby litigants seek out a perceived favorable forum for their dispute. Did the NFL choose a favorable forum? Or course, but it also chose its home forum rather than a faraway district with little connection to the actual events. More accurately, the NFL “forum-fenced” in its home district, as the NFL is headquartered in Manhattan, which is also where many of the underlying events took place and many of the witnesses are located. This factor weighs in favor of the Southern District of New York keeping the case.
Brady himself engaged in classic forum-shopping by seeking out a district with little to no nexus to the dispute in the hopes of drawing a favorable judge. By filing in Minnesota, Brady was hoping to draw the Honorable David Doty who not only ruled against the NFL and in favor of Adrian Peterson earlier this year, but also ruled against the NFL several times in the past. Brady’s case was not initially assigned to Doty; however, the assigned judge can transfer the case to Doty and, if he does not, Brady could seek transfer to Doty.
The balance of convenience factor heavily favors keeping the case in the Southern District of New York. The NFL is headquartered on Park Avenue and many of the witnesses are NFL personnel who live and work in the New York area. There is virtually no reason for Brady to sue in Minnesota other than to seek out Judge Doty. The allegation in Brady’s complaint setting forth why Minnesota is an appropriate venue simply states, “[t]he NFL regularly transacts business in this district,” a general statement that could be made about any district in the country. The forum shopping and balances of convenience analysis would be much different had Brady filed in Boston in the District of Massachusetts where the Patriots and their witnesses are located. On the whole, the NFL has the much better argument to keep the case in New York.
However, the NFL and Goodell’s control over the appeals process and the ultimate decision provides Brady with perhaps his best argument for a unique set of “special circumstances.” The NFL drafted the Brady decision and controlled the timing of its release (normally Brady’s specialty). The NFL then coordinated the release of its decision with the filing of its lawsuit several hours later. The NFL no doubt had its lawsuit pre-drafted and ready to file as soon as it released its decision. It is apparent from a review of Brady’s complaint that his legal team had much of the complaint pre-drafted; however, Brady still had to wait for the release of the NFL’s decision, and his lawyers had to parse the decision for potential arguments and then finalize and file his complaint. If Brady wants to fight over the forum, then Brady should argue the NFL’s control over the process and the timing of the decision deprived Brady of his rights as the natural plaintiff to seek redress for his four-game suspension in his chosen forum. Additionally, the NFL was in such a rush to file its complaint that its lawyers neglected to sign the civil cover sheet, an administrative form accompanying lawsuits. The NFL did not correct the filing until Wednesday, the same day Brady filed his suit. Brady may also argue for transfer to Minnesota on these grounds.
Early Thursday morning, Judge Richard Kyle in Minnesota ordered transfer of Brady’s case to the Southern District of New York, noting “[t]his Court…perceives no reason for this action to proceed in Minnesota.”
Brady’s lawyers have indicated they will seek an injunction in the near future to allow Brady to stay on the field while the lawsuit plays out. This is a potentially risky move because Brady is currently due to serve his suspension during the first four games of the season. If Brady is successful in obtaining an injunction, but later loses the case, he risks serving his suspension during more critical late season games, or even the playoffs. Brady’s response to the NFL’s suit is due on August 13. It is unlikely that Brady’s team (legal, that is) will wait that long because Brady’s other team, the New England Patriots, hosts the Green Bay Packers at 7:30 p.m. on August 13 for both teams’ first preseason game.