U.S. District Judge Richard Berman’s recent voiding of New England Patriots quarterback Tom Brady’s four-game suspension caused shockwaves across the NFL. Though the NFL has appealed the judicial ruling, Deflategate is, well, deflated and all but gone. There are, however, valuable lessons to be emphasized for homeowner associations.

One of the grounds for Judge Berman vacating the suspension and fine was inadequate notice to Brady of both his potential discipline and alleged misconduct (in addition to denial of equal access to files and witnesses). In the ruling, Judge Berman stated:

"Because there was no notice of a four-game suspension in the circumstances here, Commissioner Goodell may be said to have “dispense(d) his own brand of industrial justice."

The judge further cited established collective bargaining case law for the proposition that “[a]ny disciplinary program requires that individuals subject to that program understand, with reasonable certainty, what results will occur if they breach established rules.”

Sound familiar?  This statement should sound very familiar to HOA board members and managers.

Informed community association boards of directors and managers know that an association cannot fine a homeowner for a violation of the CC&Rs or rules, unless the rule or provision has been previously provided to the owner. Since CC&Rs are recorded in county recorder’s offices, owners have constructive notice of the document, whether or not they actually reviewed them. Because rules are not recorded, an association has an affirmative duty to send out the document (and all amendments or revisions) to all owners. Similarly, HOAs ordinarily have a fine schedule affixing a specific dollar “fine” or assessment amount to that improper conduct.

If NFL Commissioner Roger Goodell and his legal team lived in an HOA, perhaps they would have gotten it right and had Brady’s suspension upheld.  Lesson learned, Commissioner.

For community association boards and managers, this high profile case serves as a vital reminder of the importance of comprehensive and sound CC&Rs, Rules and Regulations, and Fine Schedules.  Do not hesitate to contact Barker Martin if you would like legal review of your governing documents, or drafting of an Enforcement or Collections policy.