Tuesday, September 8, 2015

Deflategate as a lesson for HOA's?


Deflategate as a lesson for HOA's?  Footballs and air pressure don't seem like they have much to do with community associations. In fact, there are lessons to be learned from Roger Goodell, Tom Brady and Judge Richard Berman, starting with the importance of procedure.

By now, everyone is probably familiar with the background of Deflategate. Brady and the Patriots were accused of manipulating the air pressure of the footballs used in their games, possible even outside the parameters set by the NFL for air pressure. Another team complained, and a multi-million dollar investigation ensued. The investigators concluded that it was "more likely than not" (one of those legal phrases) that Brady and the Patriots had doctored the balls. Discipline, in the form of a lengthy suspension, was ordered by the league. Brady's appeal, amazingly enough, was heard by the Commissioner acting as an arbitrator under the Federal Arbitration Act. Not surprisingly, the Commissioner upheld his own decision, prompting Brady to appeal to federal court.

Brady, like a wounded lion (or an aggrieved Unit Owner) with his reputation tarnished and his pride hurt, pulled out all the stops. His lawyers fought with the league lawyers on every turn. They filed discovery motions, asked for Goodell to be recused and basically argued about every point. Many of the arguments had less to do with what Brady did or didnt' do, but were about what the league did and didn't do. Precedents were compared, and often found lacking.

Goodell, for his part, acted as if he had done no wrong. He sounded all the high-falutin' arguments about "the integrity of the game" and waged a PR campaign to show that Brady tampered with evidence by destroying his cellphone. There were no specific rules covering what Brady had allegedly done, and no precedents for a suspension under similar circumstances.

Judge Berman did what a good judge will do - he acted as a referee. He reviewed whether the NFL had followed its own precedents and policies, and found none to support the suspension or the analysis provided by Goodell. He excoriated the NFL for not giving Brady any notice of the type of penalties he was subjected to, not allowing him to cross examine an important witness against him and for Goodell reviewing his own decision.  Interestingly, Judge Berman never focused on whether Brady deflated any balls, his decision was based on the process and procedures that the NFL followed, finding them deficient.

So what does this mean for community associations?  It means that the "notice and opportunity for hearing" that is mandated by the Uniform Condominium Act and the UPCA should not be taken lightly. They should not be glossed over. A Unit Owner who is facing fines or suspension of their membership privileges must be given clear and meaningful notice of what they are accused of, and the sanctions that could be imposed. It means that when the Board holds that hearing, it should be as transparent as possible and give broad recognition to the "rights of the accused."  It means that Boards should give thought to the fight they'll provoke from the Unit Owner, and not give them procedural arguments that might sway the day.

Article written by Hal Barrow

Note Added:   Requirements for hearings and other due process procedures vary by state. Conceptually, everyone facing fine or suspension of privileges has "due process rights" however the details vary by jurisdiction.

Paul K. Mengert

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