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NFL goes forum-shopping with pre-emptive lawsuit

At some point over the past few weeks, I considered the possibility that the courtroom portion of the Tom Brady saga could be initiated not by the NFL Players Association but by the NFL. I made a mental note of it, vowed to write about that possibility, and then forgot to do it.

The reminder came today, via the report from Scott Soshnick of Bloomberg that the NFL has filed a pre-emptive lawsuit in federal court in Manhattan, seeking affirmation of the outcome of the Brady appeal.

Although I’ve yet to see the documents (the ask has been made), I’m certain that the NFL filed a case seeking what’s known as a “declaratory judgment” under the Federal Arbitration Act, explaining that a controversy clearly exists on the viability of Goodell’s final ruling in the Brady appeal and asking the court to determine the parties’ legal rights.

It’s not entirely uncommon, but it’s a very aggressive maneuver. As a practical matter, it potentially short-circuits the efforts of the NFLPA and Brady to file in Minnesota (with Judge David Doty presiding) or Massachusetts (with Judge Pats Fan presiding), where the ruling likely would be more favorable to Brady.

Whether through pre-emptive lawsuits or otherwise, forum shopping happens all the time in the legal profession. Part of securing the best outcome for a client is picking the best court for attempting to secure that outcome.

Still, there’s something that feels a bit unseemly about the NFL’s effort, creating a clear sense of coordination between Goodell the supposedly independent arbitrator and Goodell the chief executive at 345 Park Avenue. The ruling, which is required to be made “as soon as practicable” by Goodell the arbitrator undoubtedly was delayed long enough for Goodell the executive to ensure that his lawyers would be able to file immediately a lawsuit calling “shotgun” on the resolution of the legal rights.

The question now becomes whether the NFLPA will proceed with its own lawsuit, and if so whether one of the two judges will defer to the other one.