Editor’s Note: The following is an addendum and is the legal analysis to NEWTON KNOWS – WHY THE NFL GOT IT RIGHT ON #DEFLATEGATE, our step by step look at the Tom Brady investigation. You can find it there and it has reproduced separately 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.

I. Delegation:

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.

cant get past this

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:

SPC integrity

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.

Deflategate

Preamble to the NFL’s league policies provided to NFL players

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:

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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.

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