by Michael Goldberg
Professor Michael Goldberg teaches at Widener UniversityDelaware Law School. He is on AUD’s Board of Directors.
Quarterback Tom Brady’s recent victory in his “deflategate” battle
with NFL Commissioner Roger Goodell was a wonderful
Labor Day reminder of one of the most important benefits labor
unions bring to the people they represent: due process in the
That’s not the first benefit of union representation most people
would think of. That would probably be higher wages and better
fringe benefits. For that reason, someone like Tom Brady would
be the last person they would think needs a labor union. As one of
the all-time best in the world at his profession, paid millions of
dollars a year by his employer and millions more for commercial
endorsements, what would Tom Brady need with a labor union?
Thank you, Commissioner Goodell, for answering that question
Even someone as rich, famous, and talented as Tom Brady sometimes
needs protection against arbitrary and unfair treatment by
his boss. Unfortunately, most Americans have absolutely no right
to due process on the job. The main exceptions are public employees,
who often have civil service protection and are covered
directly by the Due Process clauses in the U.S. Constitution.
Most employees in the private sector, however, have very little
protection against arbitrary or unfair treatment by their employer.
The due process protections of the Constitution only apply to
abuse by the government, not by private employers. Civil rights
laws make illegal some forms of unfair treatment in the workplace,
but not all arbitrary treatment is a result of discrimination
against a particular demographic.
In the private sector, it is the grievance procedure contained in
just about every collective bargaining agreement that is the main
source of protection against arbitrary treatment at the hands of the
boss. Unfortunately, less than 10 percent of employees in the private
sector have the benefit of working under a union contract.
Fortunately for Tom Brady, he is one of them. Yes, it was a federal court that lifted the four game suspension the NFL had imposedon him, but it was Brady’s union, the NLF Players’ Association,that fought the NFL in court on Brady’s behalf. More important,
it was the grievance procedure contained in Brady’s union contract
with the League that was the legal basis for his victory in
Due process under the contract required advanced notice of prohibited
conduct and potential discipline, and a fair hearing before
discipline could be imposed. The court ruled that Commissioner
Goodell’s treatment of Brady violated Brady’s contractual due
process rights in both respects. The NFL had never put players on
notice that the violation Brady was charged with could result in a
punishment as severe as a four game suspension, and Goodell
denied Brady a fair hearing by refusing to allow his lawyers to
examine one of the league’s lead investigators and by denying
them equal access to the investigators’ files.
The lesson here is not that a unionized employer cannot discipline
an employee who breaks the rules. The point is that when that
employer seeks to do so, it must do so in a fair manner, providing
the employee with notice of the charges and the potential penalties,
and an opportunity for a fair hearing before an impartial decision
maker. In the private sector, for most employees, that is
something only union representation and a collectively bargained
grievance procedure can provide.