What do Tom Brady and every dispute with an environmental agency have in common?

13 May 2015

 A friend of mine recently pointed out that if Tom Brady appeals the punishment against him, the process is spelled out in the NFL Collective Bargaining Agreement (see here). Buried at Article 46 (between injury protection and union security), is the process for appealing a sanction by the Commissioner.  For appeals of everything other than unnecessary roughness and unsportsmanlike conduct (which have a slightly different, slightly more pro-player process), the Commissioner, after consulting with Union’s Executive Director, appoints one or more hearing officers. If that seems to unfairly stack the deck against Brady, well, you’re not alone in that opinion.

However, Tom Brady isn’t alone in this situation.  Before a company or person “aggrieved” by an agency decision may appeal that decision to the Courts, typically, she must “exhaust” her administrative remedies and process and create a record for review by the Courts. So, if your permit has been pulled or conditions have been imposed on you that you think are unfair, before you ever get to see a judge, you must, in Michigan, typically proceed through what’s called a “contested case.” Under the  Michigan Administrative Procedures Act,  the agency itself or one or 1 or more hearing officers designated and authorized by the agency to handle contested cases, are required to be the presiding officer in a contested case. While the law does say that hearings are to be conducted impartially, it does seem odd that an employee of the agency whose decision one is appealing gets to sit in judgment on that appeal and is the one to control the making of an administrative record that a court would review.

While the hearing officer in Tom Brady’s case results from a negotiated agreement, it does seem that foxes guarding the henhouses is the order of the day and some are only now realizing that perhaps we should reconsider what looks like a fair process on the surface appears skewed when one scratches only a little below the surface.

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