Sir Isaac Newton
Newton’s Third Law of Motion is the only scientific law you need to know to understand #Deflategate.
In order to truly understand Deflategate you have to know what its about and more importantly what its not. This is an investigation, and corresponding discipline, pursuant to a labor agreement and conducted pursuant to labor laws. This is not a criminal investigation. Its not truly even a civil matter though it falls more closely under that latter umbrella than the former.
Now about that labor agreement. Here is what a good one does. It gives it employees pretty nice pay and other benefits/perks in a successful industry in exchange for agreeing to subject oneself to the conditions imposed by the industry and the employment. Sound familiar?
Cheating is bad for sports. The NFL had a right to include provisions in the CBA that took certain measures to make certain cheating was identified and handled. The labor agreement gives the league the right (and responsibility) to investigate matters of such a serious nature. This is industry standard by the way.
This is an investigation into an allegation of tampering pursuant to the labor agreement. Its an important distinction.
Lawyers permeate the process and these investigations are conducted as quasi judicial in nature. Civil processes and legalities matter and many of parties think like lawyers.
The NFL doesn’t have to prove Tom Brady is guilty of cheating the game. The NFL is investigating a tampering allegation lodged by the Indianapolis Colts during the first half of the AFC Championship game. It has to answer a charge of whether or not there was tampering with the game days footballs by the New England Patriots.
This isn’t about whether or not Tom Brady or the New England Patriots cheated. That it may, or may not, mean that Brady wanted to cheat or cheat the system is certainly reasonable to question. Successful cheaters usually aren’t caught though. The league only has to establish that its more probable than not that they tried.
Ultimately, the league has only to prove that its investigation was a reasonable one and that there was a reasonable basis to impose discipline. The rest is all just window dressing. The league has to answer the Colts tampering allegation. There are other teams and players in the NFL besides the Patriots and Brady.
Another important distinction.
Let’s journey through the process and look at each situation as the NFL was faced with it. Perhaps considering the case in context with the labor agreement will help clarify what is at stake.
The league was initially tipped off by the Indianapolis Colts who have maintained they were tipped off by the Baltimore Ravens. Jim Harbaugh denies “tipping off” the Colts but we know for a fact that special teams coach Randy Brown sent the following text to Colts head coach Chuck Pagano. Via the Ravens official website.
HERE’S THE TEXT FROM RANDY BROWN TO COACH PAGANO (sent Jan. 16, 2015)
“Make sure the refs rotate the kicking balls cause last week they wouldn’t let our ball in the game. Their ball was done so poorly that it was nearly impossible to kick off deep…It was hard and not worked in well at all…Let Tom (McMahon, Colts special teams coordinator) know he can call me at any time.”
Whatever other communications that transpired between the Ravens and the Colts outside of that text message, if any, what we do know is the Colts brought their concerns to the attention of the league. First the Colts notified the league office prior to the game that they had suspicions regarding ball tampering. This was communicated to Dean Blandino, head of the NFL Officiating, and a senior officiating supervisor who would be attending the game, Alberto Riveron.
Then, in the first half of the AFC Championship Game, a ball intercepted by the Colts was measured and determined to be below league minimum level of 12.5 psi. Indianapolis Colts GM Ryan Grigson then lodged a possible tampering charge in the second quarter with Troy Vincent, the NFL’s VP of Player Operations.
Duly put on notice, the league began its investigation. Here, the testimony of Troy Vincent comes into play. This is basically how it went down.
Much ado has been made about Vincent’s lack of knowledge regarding the Ideal Gas Law which is a bit of a red herring. Whether or not he knew, there was no way Vincent could walk into that halftime meeting and just automatically say “Ideal Gas Law” conclude no biggie, shrug, and walk out.
Once the NFL was confronted with this tampering allegation, there was going to be an investigation. After the halftime measurements were irregular, there was going to be a followup. Again, the NFL had to answer this tampering allegation raised by one of its member clubs. It could not just ignore it and hope it all went away because the story had already been broken by Bob Kravitz, a well respected veteran reporter who covers the Indianapolis Colts.
We will address this later, but it is very instructive that the first thing Ted Wells did in his investigation was take a look at this question. Tossing aside common sense for a moment, Exponent took a look at various factors to see if the measurements themselves warranted further investigation and concluded affirmatively. Regardless of the answer to that question, it was very unlikely the league could just let the matter drop because of its duty to the Colts.
With questions still remaining concerning what the halftime measurements meant, the NFL knew further investigation would be necessary. It had a tampering charge before it by the Colts that were not fully answered by the halftime testing. The NFL could not simply let this slide and do nothing. For every reaction there is an equal and opposite reaction.
At this point, the league knew it had a situation on its hands. It didn’t know the extent yet but it knew there were questions to be addressed about what the halftime testing proved, or didn’t, as the case may be. The story was everywhere and wasn’t going away. It was going to require a time consuming investigation with experts looking at various scenarios.
Thus, the league brought in Ted Wells to conduct this investigation. This is not Wells’ first rodeo since he previously investigated the situation involving the Miami Dolphins and allegations of bullying in its locker room.
Its important to recognize that Wells and his team were hired to fact find and provide recommendations but not to serve as legal counsel for the NFL. Jeff Pash, who is the NFL’s General Counsel, worked with Wells and had input into the process but Wells makes it clear his investigation was independently conducted and the evidence supports that conclusion.
This matters because Jeffrey Kessler, the attorney representing the NFLPA and Tom Brady, has raised it as an argument on appeal. Neither he nor his team have a duty to zealously represent the NFL. Quite the contrary. A more comprehensive analysis of the legal issues will come later but factually its simply inaccurate.
Right now seems like a good time to discuss Exponent as well, the engineering and consulting firm hired by Wells to perform testing to see if the halftime measurements provided was capable of supporting any findings on the tampering charge. Exponent is in a consulting firm and does a lot of this (65 percent of its revenues from litigation activities).
This should surprise no one since it was started for this very purpose by a group of PhDs from Stanford. It has 984 employees including engineers and physicists more a third of whom hold doctorates. Exponent has been hired by Toyota, Big Tobacco and NASA among other big players in litigation. Its role however was very clearly defined by Wells from the beginning.
Yet, Exponent is not the only expert Wells retained to evaluate the scientific data. Wells hired Dr. Daniel R. Marlow of the Princeton physics department to oversee the work being conducted by Exponent. You might see reports questioning Exponent, but you sure don’t see anyone questioning Dr. Marlow or his qualifications.
Now, it is important to look at what Wells charged Exponent with doing. From the Wells report:
This is how the hiring of Exponent and Dr. Marlow went down as described by Wells in his testimony.
Exponent was retained to conduct testing and help making findings with regard to the data but it also acted as a fact finder. Wells and his team were sent questions by counsel for the Patriots and Exponent would conduct tests to respond to those queries. This occurred during phase I of the testing.
Brady has his own hired gun as well. His legal team retained Edward A. Snyder, Dean and William S. Beinecke Professor of Economics and Management, Yale School of Management, and expert consultant for the Analysis Group. Snyder has a bit of a golden touch, or perhaps more fitting a golden tongue, when it comes to leading business schools. Snyder was hired to bring recognition and wealth to the Yale Business school but from his testimony he is also charged with overseeing disciplinary actions on behalf of the university.
He joined Yale in the fall of 2011 and under his watch Yale was heavily criticized for its handling of sexual assault allegations against the school including failure to expel students who had been found guilty of sexual misconduct. His midas touch is working however since Yale is creeping into the ranks of elite business schools. Snyder is a bit of a pop star in academia circles.
There is a lot of disagreement between the competing experts in this case over methodology. Wells and his team concluded that the difference in inflation levels could not be explained without some sort of human intervention. Brady and his team questioned that conclusion by attacking the methodology used. While I tend to agree with Wells, even if the evidence is inconclusive in the end it doesn’t matter because of the other evidence.
In addition to the experts and Brady, there are two Patriots employees at the heart of this case, Jim McNally and John Jastremski. McNally was a locker room attendant for the Patriots. He is not involved in game day ball preparation and has no responsibility over inflation or deflation over the balls. His job is to assist the game day officials. Jastremski was an equipment assistant for the Patriots.
Whatever the disagreement about the expert testimony, the following facts are uncontested. From pages 3-4 of the Wells report:
2. Several hours before the AFC Championship Game, Jim McNally, the Patriots employee responsible for delivering the Patriots game balls to the game officials for pre-game inspection, brought the balls into the Officials Locker Room at Gillette Stadium. At or around that time, McNally told the referee, Walt Anderson, that Tom Brady, the Patriots quarterback, wanted the game balls inflated at 12.5 psi. McNally has been employed by the Patriots as a seasonal or part-time employee for the past 32 years. His work for the Patriots during the 2014-15 NFL season took place only on a part-time/hourly basis on days on which the Patriots had home games. His legitimate job responsibilities as Officials Locker Room attendant did not involve the preparation, inflation or deflation of Patriots game balls.
3. During the pre-game inspection, Anderson determined that all but two of the Patriots game balls delivered by McNally were properly inflated. Most of them measured 12.5 psi. Two tested below 12.5 psi and Anderson directed another game official to further inflate those two game balls, which Anderson then adjusted to 12.5 psi using a pressure gauge. Most of the Colts game balls tested by Anderson prior to the game measured 13.0 or 13.1 psi. Although one or two footballs may have registered 12.8 or 12.9 psi, it was evident to Anderson that the
Colts‟ inflation target for the game balls was 13.0 psi. No air was added to or released from the Colts game balls pre-game because they were all within the permissible range.
4. When Anderson and other members of the officiating crew were preparing to leave the Officials Locker Room to head to the field for the start of the game, the game balls could not be located. It was the first time in Anderson‟s nineteen years as an NFL official that he could not locate the game balls at the start of a game. Unknown to Anderson, and without Anderson‟s permission or the permission of any other member of the officiating crew, McNally had taken the balls from the Officials Locker Room towards the playing field. According to
Anderson and other members of the officiating crew for the AFC Championship Game, the removal of the game balls from the Officials Locker Room by McNally without the permission of the referee or another game official was a breach of standard operating pre-game procedure. According to Anderson, other members of the officiating crew for the AFC Championship Game and other game officials with recent experience at Gillette Stadium, McNally had not previously removed game balls from the Officials Locker Room and taken them to the field without either receiving permission from the game officials or being accompanied by one or more officials.
5. Based on videotape evidence and witness interviews, it has been determined that McNally removed the game balls from the Officials Locker Room at approximately 6:30 p.m. After leaving the Officials Locker Room carrying two large bags of game balls (Patriots balls and Colts balls), McNally turned left and then turned left again to walk down a corridor referred to by Patriots personnel as the “center tunnel” heading to the playing field. At the end of the center tunnel on the left-hand side, approximately three feet from the doors that lead to the playing field, is a bathroom. McNally entered that bathroom with the game balls, locked the door, and remained in the bathroom with the game balls for approximately one minute and forty seconds. He then left the bathroom and took the bags of game balls to the field.
On the day in question, McNally broke protocol by taking the footballs into a bathroom on his way to deliver them. It should also be noted that McNally initially denied breaking protocol until video evidence came to light. Further, the text messages between McNally and Jastremski point to Brady.
The Wells report sets out in some detail their involvement including suspicious text messages sent between the two.
In his testimony at the appeal hearing, Brady was asked about other text messages and various communications but none is more striking or interesting than the following and Brady’s response.
This is what Brady had to say about how he viewed those text other text messages.
Its rather curious that Brady isn’t more concerned about these text messages given the situation.
Brady’s other testimony is very interesting too. He is very engaging and forthcoming early on when talking about his career and the circumstances surrounding the Jets game where he complained about the feel of the football. Yet, when it comes to conversations about the text messages he is noncommittal at best giving short generally one word answers.
Like Wells, I find the timing, sequence and frequency of the communications to be curious too. I also find Brady’s recollection of certain conversations yet not others to be rather telling. Its an old lawyer’s trick to coach a witness not to testify in detail about information you aren’t sure will come out.
Here is where data gap really hurts Brady. Wells had a violation of game day protocol by McNally. Walt Anderson had never had that happen in his almost twenty years of officiating. That’s a very serious breach of the rules.
He also has text messages between two Patriots employees that raise suspicions. He met with these two employees, Mcnally and Jastremski, and concluded that if there is a conspiracy afoot they were not the ringleaders. Their communications raise questions regarding Brady and his involvement.
Now we reach the point where questions surrounding what communications Brady turned over are important. Wells asks for communications and is willing to work with Brady’s legal team in narrowing it down to relevant communications. He doesn’t ask for the phone because he is willing to trust the process will be conducted fairly.
Let’s pause briefly for a note about the process called discovery. An investigation requires exchange of information which is determined by the NFL in this case because its the fact finder and initial arbitrator. Judge and jury if you will. In the legal world there is something called discover which includes the “spirit of discovery.” This rule and that spirit form the foundation under which lawyers engage in the process of sharing or obtaining information. You can see Rule 26 of the Federal Rules of Civil Procedure which is formulated with this spirit in mind.
Destroying information you know a party in a lawsuit wants is described colloquially as “spoilation of evidence” which contemplates that a lawsuit will be filed in the future and a party has a duty not to destroy evidence relevant to it. When a lawsuit has already been filed a spoilation charge is governed by discovery rules where the judge usually imposes some sanction on the destroyer by holding that the missing evidence is to be taken as statements against interest or admissions.
This is important because in a labor arbitration the investigation is what begins the lawsuit. This is a labor arbitration and subject to binding arbitration. This for all intents and purposes is the lawsuit because it will go to federal court (usually) on the record compiled below in the investigation.
Where there is smoke there is usually fire.
Its instructive here to consider what has been going on in the league. Mishandling of the Ray Rice matter among other things has brought sharp criticism from many quarters. Greg Hardy was handed a ten game suspension which didn’t sit well with some players. Its no coincidence that Hardy’s suspension was reduced to four games around the time the Brady suspension was upheld.
Discipline has fallen disproportionately on black players and there is very much a distrust existing between the league office, the NFLPA and the labor force that it represents. The NFL is composed predominantly of black players who are watching how the league is handling the Brady case.
Also, the league has been down this path before with another white quarterback who presented the league with a rather unique situation. Ben Roethlisberger might not be the first NFL quarterback to allegedly act inappropriately with a young female but he certainly did it at the wrong time. Allegedly.
Both players and league have been forced to deal with a changing climate. No longer does “traditional media” hold the keys to the conversation. The internet, and now social media, has changed the game and both sides are working hard to utilize these new channels in a way to shape perception.
Art Rooney and “Big Ben” played the dance well. The league suspended Roethislisberger six games initially. He appealed and the suspension was knocked down to four games. Big Ben recently got a contract extension worth up to $99 million dollars if he plays it through.
At this point the NFL is sitting with allegations of tampering, suspicious circumstances including a known violation of game day protocol by Jim McNally (who denies it until confronted with video evidence), possible admissions and missing evidence. There are text message logs and emails that pre-date the relevant time period, as well as those that post it. The missing data could only be retrieved via the missing mobile phone. Brady provided certain communications that pre-date and post-date the relevant period from phones still in his possession.
That missing evidence is rather important. There are only two things that could be on the phone: exculpatory or incriminating evidence, (i.e. more possible admissions). If its exculpatory there is every reason in the world to provide it. If its not then its the nail just waiting for the NFL’s hammer.
Now about that missing cell phone. It was destroyed on March 6, 2015. That is the very same day that Brady was interviewed by the Wells investigators. Nothing to see here folks just move along.
Regardless of reason, there is a four month gap between communications that were provided by Brady. That gap runs from November 5, 2014 to March 5, 2015. That gap is important because Brady had quite publicly berated a Patriots employee for what he considered to be unacceptable game balls following the Jets game of October 17, 2014. The AFC Championship game at the heart of this battle was on January 18, 2015.
This timeline is particularly devastating to Brady because the Jets game is key here and certainly so are communications proceeding the AFC Championship game and immediately thereafter when these allegations began to surface. Who did Brady communicate with and what was said and to whom?
Presented with all this Wells did what he had to do. There is enough here to conclude there was non compliance with the rules regarding game balls. There is no question that Jim McNally broke protocol during the AFC Championship game. Communications between he and Jestremski raise very real questions about Brady and his involvement.
For his part, Brady flouted the authority of the league to conduct this investigation. The league can’t let that slide because to give preferential treatment to him simply because he is “Tom Brady” would set a very bad precedent in its dealings with other players. The league is absolutely right. It does have the authority and Brady cannot flout it.
A few final notes about the appeal hearing. Goodell come across as very engaged in the process from reading the appeal hearing transcript. He asked generally good questions and seemed interested in getting the information he needed. We previously addressed Troy Vincent’s testimony but let’s take a look at some others.
It is reading Wells testimony that you get the clearest picture of the focus of the investigation and how they approached Brady’s refusal to provide the information. Contrary to how he has been portrayed in the media lately, Wells come across as thoughtful and understandably frustrated by the predicament Brady places him in.
In summary, when you take this case step by step you see the league had no other choice in this matter. It didn’t have to prove Tom Brady was a successful cheat. It just had to prove there was an effort to circumvent the rules and that he was involved. With other evidence pointing the finger at Brady’s involvement, Wells was entitled to take that missing evidence against him and find as he did.
Now let’s take a look at the legal arguments presented here.
The NFLPA has advanced several legal theories before Judge Berman but we have condensed them for the reader’s convenience. We have separated those arguments out into three categories: delegation, notice and inconsistent discipline. We will address each separately.
Kessler argues that the NFL does not have the authority to delegate fact finding under the CBA. We can dispense with this assertion rather quickly. It absolutely does have that authority so long as the Commissioner is the one to impose discipline. The union has long acquiesced that former right.
We can also deal with the cell phone issue as well as the authority to conduct the investigation here. Not only does the league have the authority to investigate here but it has a duty pursuant to the CBA to address the possible tampering charge filed by the Colts in the first half of the AFC Championship Game.
As a matter of privacy, the league already controls ingress and egress of athletes bodies all in the name of cheating. Surely no one is arguing that the league doesn’t have a duty to ensure cheating isn’t going on. Parties to lawsuits routinely provide cell phone and electronic communications.
Finally, with regard to the investigation, this isn’t about demanding Brady’s cellular phone. Wells was willing to accept documentation and they provided certain documentation. What is missing is the information on the mysteriously disappearing cell phone from the relevant time period.
One final note about the delegation of the investigation to Wells and the back and forth over independence. The NFLPA has questioned Wells independence in order to raise doubts about the findings. The NFL has responded by stating they have no duty to provide an independent investigation but they did anyway. The outrage is rather curious.
As a practical and legal matter, the NFL is correct. It could have conducted the investigation on its own. It seems reasonable to conclude that the scope and the breadth of the investigation along with perception of his close relationship with Robert Kraft, owner of the New England Patriots, led to a conclusion that an independent investigation was preferable. Either way, the NFL is the fact finder here.
This argument can be boiled down to, “we are mad because you did an investigation.” The NFL not only has the authority to investigate a tampering charge it has a duty. We are mad! The NFL doesn’t have to appoint an independent team to investigate the complicated issues arising under this tampering charge but it did so anyway so we are mad at that too!
Frankly, it’s a no win situation in a case where it appears people are just mad that the NFL investigated this charge and asked for cell phone records from Brady. Much has been made about Wells and independence yet Kessler questions Wells for not stepping into Goodell’s role as arbitrator by failing to notify Brady that he could be disciplined for failure to cooperate. Had Wells indeed done that his independence surely would have been questioned even further. Furthermore, the NFL’s most recent decisions on player discipline including, but not limited to, Bountygate put Brady on notice as to that issue.
Finally, as to the recusal issue, the standard is that the Commissioner is subject to recusal when his own actions and conduct are brought into question. Here, because Troy Vincent wrote the letter to Brady outlining the discipline, he and the NFLPA claim Goodell delegated his exclusive authority under Article 46 of the latest CBA in the imposition of discipline. Goodell was asked to recuse himself for this reason, and refused by stating he didn’t delegate the authority and that Vincent was simply the one who notified Brady.
As a practical matter, anyone considering this issue would be forced to agree its very unlikely Goodell allowed Vincent to make that determination on his own. In fact, all evidence and indeed public perception is quite the contrary. Part of the optics underlying the disagreement with this case is that Goodell is a heavy handed arbiter. It also seems unlikely that anything productive would come from such an inquiry and that it would be only a fishing expedition designed to embarrass and/or harass the Commissioner and the league.
II. Notice: Standard of proof and Competitive Advantage Clause vs Conduct Policy
As to notice, Kessler first argues that the league, through Wells, erred in applying the “generally aware” standard in imposing discipline. Here is that finding from page 6 of the Wells report and it is reiterated in Troy Vincent’s letter to Tom Brady outlining discipline.
For the reasons described in this Report, and after a comprehensive investigation, we have concluded that, in connection with the AFC Championship Game, it is more probable than not that New England Patriots personnel participated in violations of the Playing Rules and were involved in a deliberate effort to circumvent the rules. In particular, we have concluded that it is more probable than not that Jim McNally (the Officials Locker Room attendant for the Patriots) and John Jastremski (an equipment assistant for the Patriots) participated in a deliberate effort to release air from Patriots game balls after the balls were examined by the referee. Based
on the evidence, it also is our view that it is more probable than not that Tom Brady (the quarterback for the Patriots) was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls. (emphasis ours)
This is really a two part inquiry. First, Wells finds that there was a deliberate intent to tamper with the footballs considering the very real breach in protocol by McNally (who has no responsibility with respect to inflation or deflation) and considering the text communications between he and Jastremski (who does have that responsibility), calling McNally “the deflator” among other things. Second, Wells finds that this scheme makes little sense without Brady’s knowledge and participation and further finds that the evidence points to Brady being involved.
Underpinning all this are the laws of agency. Agency flows from principal on down. When you look at what McNally and Jastremski are saying, they are pointing the finger at Brady as the principal. That construction makes the most sense because there is no reason for either to do this on their own. Jastremski had previously been dressed down publicly following the now infamous Jets game by Brady for game balls that did not meet his approval.
The case that most closely approximates the Brady case is Bountygate, the case involving the New Orleans Saints organization where the league investigated and ultimately suspended Saints coaches as well as General Manager Mickey Loomis, for the alleged operation of a scheme to operate a bounty program that reportedly carried great incentive to take opposing quarterbacks out of the game.
Kessler does a good job of trying to distinguish Bountygate, in his argument and he makes several good points. He cites to Bountygate for the proposition that players are not subject to punishment via agency and indeed the arbitrator, Paul Tagliabue, reversed Roger Goodell’s discipline of several Saints players based on principles of agency by finding that the players were doing what they were instructed by their agents, the coaches for the Saints.
Yet, as to the Saints coaches and GM Mickey Loomis, the severe punishments stood and can be found on page 1 of Paul Tagliabue’s Bountygate decision:
Commissioner Goodell fined the Saints $500,000; forfeited the team’s second-round draft selections in 2012 and 2013; suspended the Saints’ head coach Sean Payton for the entire 2012 NFL season; suspended Saints’ general manager Mickey Loomis for eight games and fined him $500,000; suspended Saints’ assistant head coach Joe Vitt for six games and fined him $100,000; and suspended the now former Saints’ defensive coordinator Gregg Williams indefinitely. These suspensions thus deprived the Saints of vitally important coaching and leadership talent, and they represented a severe competitive penalty for the Saints’ team, its fans and indirectly for the New Orleans / Gulf Coast region. Commissioner Goodell’s findings and the resulting suspensions of these Saints’ personnel are final and no longer subject to appeal.
Add New Orleans to the list of teams watching this case.
The Bountygate situation is also distinguishable from this one on other grounds. In Bountygate, the scheme to injure players was directed by coaches, namely defensive coordinator Gregg Williams. Allegedly! Payton and Loomis were handed down harsh penalties because it was found they knew about it, failed to do anything about it, and actively hindered the investigation. So the generally aware language was previously applied in a disciplinary proceeding involving a scheme which goes to the consistency and fairness in proceedings, discipline and punishment.
As to those who allegedly operated the scheme, the discipline imposed on players such as Anthony Hargrove were overturned for a variety of reasons including lack of precedent and agency. Its clear Tagliabue felt it unfair to suspend players who were acting at the direction of their coaches. Calling it a unique situation, he ruled as follows as to Hargrove and that reasoning is applied to the other players as well (page 13):
Finally, given the comprehensive, overt and ongoing nature of the obstruction by coaches and their direct instructions to Hargrove to lie, combined with their control over his football career, it is clear that Hargrove was under tremendous pressure to follow the chain of command in order to keep his job. I have concluded that there is not sufficient evidence to demonstrate in these unique circumstances that Anthony Hargrove’s alleged misconduct is deserving of a suspension. I therefore vacate the suspension imposed on Hargrove.
Another factor complicating Bountygate was the difficulty in distinguishing a legal hit versus a legal hit. Its very difficult to interpret intent in the violent collisions you see out on the football field. You can read the full decision here.
The “follow the leader” approach was applied fairly consistently in Bountygate. As we mentioned previously, agency flows from top to bottom, not the other way around. Bountygate recognized that employees who report to others are subject to incredible pressure to satisfy the person in charge. That’s why text messages such as this are so devastating to Brady.
The actions of Jastremski and McNally make little sense without Brady’s involvement. Its clear from his testimony that Brady is very particular about the game balls. We know this from the Jets game. All the evidence suggests that nothing would happen to these game day balls without Brady’s approval.
Kessler next argues that the players are not on notice that the competitive advantage clause applies to them because it is signed by the owner and head coach. He agrees it applies to club personnel and employees but not to the players who are given a uniform policy to sign. Tied up in this is the argument that the competitive advantage clause does not apply to players and that no player has ever been disciplined under the conduct policy under similar circumstances.
In a sense, he is right. This Guardian article addresses the NFL’s top cheating scandals but none come close except perhaps Bountygate which we just discussed. That the NFL would chose language from that case is understandable. Tagliabue for the most part upheld the league’s findings but reversed on matters of discipline because Saints coaches tainted the process and he felt players were acting at their direction.
It certainly is unprecedented that an NFL player, particularly Tom Brady, would be implicated in a cheating scandal that involved tampering with inflation levels of game day balls. This case involves a lot of unprecedented situations. The CBA of course cannot possibly be expected to identify every possible future scenarios and it gives the league large discretion to deal with these matters.
As to the competitive advantage clause versus the conduct policy, one wonders how Kessler would argue if Brady himself had deflated footballs. What if Brady had violated any other rule prohibited by the Competitive Advantage Clause including videotaping the other team, monkeying around with the clock, or otherwise. Surely Brady isn’t arguing that he wasn’t on notice that cheating would result in severe penalties.
Nevertheless, NFL player contracts make it clear that conduct detrimental to the game that affects the integrity of the game could result in severe penalties including suspension. From the standard player contract:
Moreover, the preamble to the NFL Player Policies that they do receive makes it clear that fines and/or suspensions can be levied for conduct detrimental to the game or to the public’s confidence in the integrity of the game. Nothing undermines the public’s confidence in integrity of the product more than cheating.
It seems outlandish to ask those questions because it seems inconceivable to believe it would be that easy for an NFL player to engage in cheating and escape discipline on such a weird technicality. That an NFL player had never been implicated in a scheme like this before hardly seems like a reasonable option to excuse the behavior, yet here we are.
Finally, while the “generally aware” language is found in the Wells report and is found in Troy Vincent’s letter to Brady outlining the discipline it is not found in the award handed down by the NFL suspending Brady. The league found that Brady was involved in a scheme to tamper with the game day balls used by the Colts in the AFC Championship game. You can read the full award here.
As Kessler knows and recognizes, this language can be traced to Bountygate because the general principles remain the same and are based on agency. The suspensions handed down to coaches and management were based on this and were duly served. The scheme in that case was allegedly concocted and conducted by principals with authority over the players.
III. Inconsistent punishment
This is perhaps Kessler’s strongest argument outside a challenge of the evidence. However, recall the NFL has wide discretion in determining what constitutes conduct detrimental and cheating certainly falls within that category. Further, the NFL policies with respect to players clearly puts every NFL player on notice that fines and suspensions can be levied for violation of all of its rules including those related to public confidence in the integrity of the game.
As Kessler rightly points out, the Bountygate suspensions were overturned on behalf of the players based on this theory. He also mentions Brett Favre who was fined for inappropriate text messages to a female media member, Jenn Sterger. Bountygate we previously addressed with the overturning of the suspensions levied against the Saints players.
As for Favre his actions in sexting a female media member in a sexually harassing manner, allegedly, doesn’t come under the umbrella of cheating, competitive advantage or player safety. That investigation was conducted under the league’s workplace policies. Favre was fined for not being candid since the league was unable to prove he was the one who sent the offensive text messages. It also came at the end of the 2010 season when it was clear Favre was done and would likely never play again (he never did). In that particular instance, a suspension, multigame or otherwise, would have been meaningless.
As noted previously, this case also differs fundamentally in its genesis as well. While players, coaches and media members had noted the possible existence of a bounty system in New Orleans, the investigation did not come about as the result of a formal complaint by an NFL team like it did here.
Bountygate was decided under the prior CBA, but the basic process remains the same. Tagliabue does a good job of outlining he process and how it works. From pages 3-4 of the Bountygate decision:
That summarizes the principal legal arguments driving the NFLPA and Brady’s objection to his suspension. An arbitration award is given an extremely high level of deference by the reviewing court. The Commissioner is given sole and wide discretion to determine what constitutes conduct detrimental and indeed no one could argue with a serious face that cheating is not conduct detrimental to the game.
The standard which Judge Berman must apply is very limited. A good case to look at this issue can be found in MLBPA vs. Steve Garvey, decided by the Supreme Court in 2001. While this decision involves baseball the governing principles remain the same and are found in similar court cases in other industries including football.
Judicial review of a labor-arbitration decision pursuant to such an agreement is very limited. Courts are not authorized to review the arbitrator’s decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties’ agreement. Paperworkers v. Misco, Inc., 484 U. S. 29, 36 (1987). We recently reiterated that if an “‘arbitrator is even arguably construing or applying the contract and acting within the scope of his authority,’ the fact that ‘a court is convinced he committed serious error does not suffice to overturn his decision.’” Eastern Associated Coal Corp. v. Mine Workers, 531 U. S. 57, 62 (2000) (quoting Misco, supra, at 38). It is only when the arbitrator strays from interpretation and application of the agreement and effectively “dispense[s] his own brand of industrial justice” that his decision may be unenforceable. Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593, 597 (1960). When an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator’s “improvident, even silly, factfinding” does not provide a basis for a reviewing court to refuse to enforce the award. Misco, 484 U. S., at 39.
Garvey and other similar cases make it clear the reviewing court cannot substitute its interpretation of the facts in lieu of the arbitrators even if there is serious error simply because of a disagreement with the findings.
The “law of the shop” that Kessler argument that the Adrian Peterson and Ray Rice matters are binding falls under good job good effort. Peterson and Rice were both disciplined under the newly composed domestic violence policy the league adopted following its atrocious handling of the Rice incident. There were also dual punishments rendered in those two matters. The judge correctly vacated those awards because they were not collectively bargained as part of the current CBA which went into effect on August 4, 2011.
Here, the discipline was imposed under the current version of the CBA which is applicable to all NFL players. Cheating and tampering have long been viewed as unacceptable in football. There is ample evidence supporting the findings in the discipline imposed on Brady.
This isn’t an easy case by any means. Its not good for the NFL or Tom Brady and it surely could benefit from a resolution that prevents it from getting uglier.