Nearly 40 years ago, the leader of the National Football League, Ed Garvey, criticized and ridiculed Marvin Miller and Richard Moss for their willingness to limit Peter Seitz’s historic arbitration award that created free agency.

Seitz ruled that baseball players, such as Andy Messersmith and Dave McNally, in whose names the union filed the grievance on which Seitz ruled, could become free agents if they played a year without signing a contract. The renewal clause in the uniform player’s contract, the arbitrator found, could not be exercised in perpetuity and therefore players could be free after a year.

However, Miller and Moss, the most effective dynamic duo in labor history, Miller the union leader, Moss the union lawyer, knew that players would benefit far less if hundreds could play out their contract renewal clauses each year and glut the market so they compromised with the owners and set six years as time players would have to play in the majors to be eligible for free agency.

Garvey, whose players were seeking free agency, called Miller and Moss everything but criminals for giving away what Seitz gave them. However smart a lawyer he might have been, Garvey failed to see the wisdom in the six-year compromise.

When Garvey succeeded in getting a free-agent system for NFL players, it was a sham compared with the baseball system and remains so today. In addition, baseball free agents and players who forgo free agency by signing contract extensions get guaranteed contracts. NFL free agents, for the most part, get one year of a multi-year contract guaranteed. They have to play each year of their contracts to be paid that year’s salary.

What prompts all of this? Miller and Moss achieved something else that Garvey and his successors have not. And that’s why Tom Brady, the New England Patriots’ brilliant quarterback, faces a four-game suspension at the start of the coming season.

In Major League Baseball, grievances are heard and decided by an impartial arbitrator. In the National Football League, the person who hears and decides grievances is the commissioner.

Whether it’s Roger Goodell or was any of his predecessors, he is hardly an impartial, or neutral, arbitrator. Consider this scenario:

• The commissioner disciplines a player, fining and/or or suspending him.
• The player files a grievance challenging the commissioner’s action.
• The commissioner, the so-called arbitrator, holds a hearing.
• The player or his representative appears before the commissioner and has to try to convince him that his original disciplinary action was excessive or wrong altogether.

This is a fair system? The baseball players didn’t think so when they were governed by it, and they did something about it.

“It was our third negotiation,” Moss recalled in a telephone interview Wednesday. “In the second negotiation we got the grievance procedure and arbitration, but they insisted on keeping the commissioner.”

As the arbitrator, Moss meant. But the third time was the charm.

“The hero was Chub Feeney,” Moss related, referring to the National League president, who was a member of management’s negotiating team.

Feeney approached Moss after a negotiating session and asked if he had time to get a drink. They went to Toots Shor’s, the popular local watering hole where sports figures gathered for business and pleasure.

“We were sitting at the bar,” Moss said, “and Chub said, ‘Why is it important to you guys to have an impartial arbitrator?’ I said, ‘Chub, you went to law school.’ He said, ‘Yeah, I see your point. I’ll see what I can do.’”

Feeney was successful, much to the regret of Commissioner Bowie Kuhn, who in his1987 biography “Hardball” wrote that he considered exercising what he considered his authority and yanking the Messersmith-McNally matter out of the grievance procedure and deciding it himself. Guess which way that decision would have gone.

“In hindsight,” Kuhn wrote, “my greatest regret about my sixteen years as commissioner is that I did not take that grievance and head off Seitz.”

In typical Kuhn myopia, he also wrote that if he had taken charge of the grievance and resolved it, “a free-agency system would have been negotiated that would have worked far better from the point of view of the fans than the one we have today courtesy of Seitz.”

Too bad Bowie isn’t around today to see how the game has developed since the advent of free agency.

Kuhn also was assuming too much in saying he had the authority to take the case out of the arbitration procedure. In his 22-year tenure as commissioner, Bud Selig never tried to do that, not even when Alex Rodriguez used the grievance system to challenge his 211-game suspension.

In the Messersmith-McNally grievance, MLB officials and lawyers were so arrogant that they ignored the advice of John Gaherin, their chief labor negotiator, to negotiate a settlement. Their view was if Seitz ruled against them, they could go to federal court and win there.

But no one among them, not even the lawyers, apparently knew that judges don’t overturn arbitration awards. Judge John Oliver of United States District Court in Kansas City taught them that reality.

A more recent case, this one reaching the United States Supreme Court, emphasized the point in 2001.

Steve Garvey, the former All-Star first baseman, sued in federal court over what he thought was too low an arbitrator’s award for his share of the $280 million the owners agreed to pay the players for their collusion against free agents in 1985, ’86 and ’87.

Losing in federal court, Garvey went all the way to the Supreme Court. He lost there, too. The court ruled unanimously against Garvey and said, in effect, that the case had no business being there in the first place.

This is why the NFL’s Brady can’t expect to win the appeal of his four-game suspension. Brady and his NFL colleagues would be better off focusing their efforts on an issue more important to them. They need to get rid of the commissioner as the league’s arbitrator.

Brady might be in better position had an impartial arbitrator heard his appeal than he is with Goodell deciding it.

When I talked to Moss about the baseball union’s early ability to get the commissioner out of the grievance procedure and get an impartial arbitrator in it, he was surprised to learn about the NFL.

“It’s taken this long,” he said, sounding incredulous, “and they still don’t have an impartial arbitrator? It’s absolutely shameful.”

It has been more than 42 years since the Major League Baseball Players Association got its impartial arbitrator. The NFL Players Association is only slightly behind the times.