Analyzing the legal ramifications of Bill Belichick's Deflategate comments
The Deflategate controversy took on a more spirited and scientific tone on Saturday as New England Patriots head coach Bill Belichick forcefully defended his team in a hastily scheduled press conference. While twice professing that he is “not a scientist,” Belichick shared details of pressure and atmospheric tests conducted by the team over the past week.
The tests, according to Belichick, help prove that scientific phenomena rather than malfeasance are to blame for Deflategate. The tests involved simulating the life of a Patriots football on game day. The Patriots’ standard procedures for handling and treating the ball were replicated. Belichick said the tests show that air pressure level of the ball fell approximately 1.5 pounds per inch. He also said he closely reviewed all team activities related to footballs and found no evidence of any wrongdoing by Patriots staff.
Reasons for the NFL to question the Patriots science tests
While Belichick convincingly explained the tests and shifted the focus of Deflategate from human wrongdoing to scientific inquiry, his explanation will warrant scrutiny from NFL officials.
For starters, the Patriots’ studies have not been published, have not been “peer reviewed” and, although some experts such as Boston College physics professor Michael Naughton say weather clearly played a role in Deflategate, no independent party has replicated the Patriots’ studies (a company called HeadSmart Labs has conducted what may be a similar study). None of these things disqualify the results Belichick shared with the media, but independent confirmation is crucial in the validation of scientific findings. On Sunday, engineer Bill Nye (aka The Science Guy) bluntly told Good Morning America that Belichick's statements on ball pressure "didn't make any sense." Nye's rebuke of Belichick doesn't disprove Belichick, but it highlights why the NFL will want outside experts to study and confirm the Patriots' tests. It will be interesting to see if the Patriots release written materials connected to their tests, such as precise details on methodologies and measurements.
Also, while Belichick assured reporters his team had consulted with many people before conducting the tests, he didn’t explicitly say that physicists and similar science experts were involved. Belichick, though, does have at least one person with expertise on his staff: defensive coordinator Matt Patricia has a degree in aeronautical engineering from Rensselaer Polytechnic Institute. Belichick also did not address why balls used by the Indianapolis Colts in the AFC Championship Game by some accounts didn’t experience a similar air pressure drop. These balls were exposed to the same weather and atmospheric conditions as Patriots footballs. In fairness to Belichick, it is plausible that the unique manner in which the Patriots prepare footballs impacted the loss in air pressure.
But attributing fault to science doesn’t explain why Patriots officials weren’t aware of how the balls could be impacted. Weather and atmospheric effects are to some degree predictable, particularly if they occur in patterns and cause consistent effects. In law, blaming scientific phenomena often fails to work when the phenomena should have been observed and considered.
NFL moves forward with Deflategate investigation
Belichick’s press conference won’t change the NFL’s plans. In a statement released on the Friday, the NFL confirmed that it has launched an investigation into whether game balls used by the Patriots in the AFC Championship Game complied with the rule requiring game balls be inflated to between 12.5 and 13.5 pounds per inch. The statement revealed that NFL executive (and attorney) Jeff Pash as well as attorney Ted Wells are leading the investigation and that the league has retained forensic evidence experts to assist them. The NFL stressed that it has not reached any findings of fault, although acknowledged the Patriots’ game balls appeared to have been under-inflated in the first half of the AFC Championship and properly inflated in the second half. Later on Friday, Patriots chairman and CEO Robert Kraft issued his own statement, saying that the team has been and will continue to be fully cooperative.
The following breaks down six key issues ahead in the Pash-Wells investigation into Deflategate and how Belichick’s scientific defense may prove influential.
1. Why the NFL believes Deflategate warrants a legal investigation
For some, Deflategate is overblown, even ridiculous. Many here in New England contend that the extraordinary interest in Deflategate reflects a longstanding jealously of the Patriots and lingering animosity for Belichick. Advocates of these views stress that the Patriots performed better in the AFC Championship Game while using properly inflated footballs, outscoring the Colts 28 to 0 in the second half on route to a decisive 45 to 7 victory. Tom Brady and his receivers, in particular, enjoyed more success while playing with permissibly inflated footballs. While he completed just 11 of 21 passes for 95 yards in the first half, Brady connected on 12 of 14 passes for 131 yards in the second half. These numbers suggest that any rule violation by the Patriots would have had minimal or no impact on the game.
Roger Goodell views Deflategate from a more scrutinizing perspective. And he should. To a commissioner of a competitive sports league, the act of rule breaking is just as important as any benefits derived from it. A competitive sports league requires that teams agree on, and follow, game rules. These rules ensure that teams play one another on a level playing field so that their wins and losses are regarded as credible outcomes. If teams disregarded rules, wins and losses would be viewed with suspicion and other teams would be incentivized to break those same rules.
These are not abstract notions: the NFL and the 32 ownership groups, along with their sponsors and broadcasters, have plenty of money invested in safeguarding fair play. After all, popularity in the NFL is at least in part a reflection that NFL games are viewed as competitive sporting events and not scripted shows. Just as it is the duty of Goodell to guarantee that referees call games fairly and competently, it is his duty to ensure that teams play by the rules.
2. NFLPA could seriously roadblock the Deflategate investigation
The NFL statement indicated that nearly 40 interviews have been conducted, including with Patriots “personnel” and referees. The statement notably did not refer to Patriots players. In his press conference on Thursday, Brady -- seemingly a key witness -- surprised some by revealing that he had not spoken with the league. Brady’s remarks are consistent with statements made by Matthew Slater, the Patriots representative to the NFLPA. Slater told ESPN.com’s Mike Reiss the NFLPA had instructed Patriots players to decline to answer questions from the NFL about the controversy.
The NFLPA and NFL have had a frosty relationship for years, but it has grown colder recently. The Ray Rice and Adrian Peterson legal controversies, in particular, have caused tension and fostered a mutual distrust. In Deflategate, the NFLPA is concerned that the league will ultimately place blame on a Patriots player. A cynic might suspect that the league, which represents owners and management in collective bargaining, would rather blame a player than a team official.
The NFL would enter murky legal waters if it tried to force Brady and other players to cooperate over the objections of the NFLPA. The standard NFL player contract contains some language that suggests Patriots players are obligated to cooperate. Players, for instance, are required to give their “best efforts and loyalty” to their teams, and must refrain from “conduct detrimental to the league.” For its part, the personal conduct policy requires that players avoid behavior that “undermines public respect and support for the league.” But there is no clear requirement that players cooperate in a so-called “independent” NFL investigation into possible equipment tampering. It is possible that the participation of Patriots players in the Deflategate investigation could lead to a grievance proceeding or even a court hearing.
Then again, Wells, who investigated bullying allegations against Richie Incognito, is well versed on involvement by the NFLPA in league investigations. He’ll likely find ways to collaborate with the NFLPA on Deflategate.
3. Lack of key powers in the Deflategate investigation
As with any internal investigation, the NFL’s ability to fully investigate a controversy is hampered by certain ground rules. The NFL is a private company and thus has no subpoena power. Consequently, no judge will compel Patriots staff members to provide the NFL with evidence, including science tests on footballs, or compel any individual to speak with Pash or Wells. This means the NFL could experience more hurdles and delays than a law enforcement agency would in piecing together all of the facts. Witnesses who speak with Pash and Wells also do not do so under oath. As a result, there is no risk of perjury if they knowingly lie. These and other limitations have been highlighted in analysis of the report authored earlier this month by former FBI Director Robert Mueller on the Ray Rice scandal.
But unlike Mueller’s investigation into the NFL’s handling of Rice, Pash and Wells are advantaged by the fact that the main target of the inquiry is a team, not a player. The NFL constitution clarifies that teams must fully and truthfully cooperate with league investigations. No Patriots employee, other than Patriots players, has a union advocating for him or her in the Deflategate investigation. Nor do those employees enjoy protections from a collective bargaining agreement; they are either contract employees or at-will employees, not unionized employees. Teams also contractually assent to follow league policies as part of the franchise relationship between teams and the league. If the Patriots, Belichick or other Patriots employees fail to fully cooperate, Goodell is well within his legal authority to punish the Patriots or those employees.
4. It’s crucial to unravel the mindset for why Deflategate occurred
In law, the state of mind of a person who breaks a rule has an enormous impact on the accompanying penalty. Generally speaking, intentional and premeditated violations are treated the harshest, with the basic logic that those who design and carry out a devious plan are the most reprehensible. They not only knew what they were doing was wrong, but they planned to undermine the system. Less blameworthy are those who knowingly break rules, but not as part of a plan.
Further down the blameworthy list are those who break rules because of reckless conduct. They willfully engaged in behavior that posed a significant risk of causing a rule violation, although they didn’t intend to break the rule. Those who are negligent -- they merely acted unreasonably in the circumstances -- are even less blameworthy. Last are those who, through no fault of their own, broke a rule. Perhaps an accident or unforeseen weather occurred while they were acting reasonably. Some areas of law, including environmental law and products liability law, can still assign blame for “faultless” conduct under what’s known as strict liability but often a pure accident doesn’t trigger a punishment.
Pash and Wells want to know the mindset of the Patriots organization in relation to the under-inflated footballs. If someone on the team planned and carried out a rule violation, the NFL would be much more inclined to impose a significant penalty. Fair play is a key tenet of a competitive sports league, and a willful violation of game rules by one team harms the rest of the league. If instead the Patriots were reckless or negligent, such as if the team intended the balls be 12.5 PSI but irresponsibly deflated them too much, the NFL would likely impose a lighter penalty. The NFL would still want to send a message that teams need to be more careful in following rules. As explained on SI.com, the Patriots would likely face fines and loss of draft picks should any misconduct be found.
There is also the possibility that an equipment malfunction occurred and it impacted 11 footballs. Belichick today argued that scientific effects are the likely culprits. In a scenario where the NFL finds the cause to be an innocent one, the NFL would still want to know why the Patriots staff did not detect the problem. Depending on the league’s findings, the Patriots might still be punished, but it would likely be exclusively in the form of a fine.
5. Who, if anyone, gave the order makes a difference
In their press conferences, Belichick and Brady disavowed any responsibility for the balls being under-inflated. Neither, obviously, was speaking under oath and thus there was no threat of committing perjury if they knowingly lied. Still, their reputations would be badly tarnished if they did, and they would likely face the heavy hand of Goodell, too. From a legal perspective, there is reason to give them the benefit of the doubt until proven otherwise.
If the NFL determines that a member of the Patriots equipment staff, perhaps as a result of too much passion for his or her team winning, “doctored” the footballs, the NFL would still punish the Patriots organization. The team would have hired that person and responsibility falls on team executives to competently hire, train and supervise employees. That said, the punishment would likely be lower than if Belichick or another Patriots executive gave the order, or if Brady or another player did so. The Patriots “mistake” would have been in a failure to supervise deceitful staff, rather than in orchestrating a plot to cheat.
If the NFL determines fault lies with scientific phenomena, the league will still want to know why the Patriots weren’t aware of it and whether the team deserves any blame.
6. When Goodell decides on Deflategate, there will be no additional review
Whenever the NFL issues a decision on Deflategate, the Patriots will accept it. This is true even if other teams have not been punished or not punished as severely for similar ball inflation issues. Under the league constitution, the commissioner’s punishments of teams are final and not subject to review. Teams also contractually assent to not sue the league or one another, meaning the Patriots won’t be filing a lawsuit against Goodell or the NFL. This is a crucial legal distinction from when a player, like Rice or Peterson, faces a controversial punishment and with the help of the NFLPA pursues legal action.
Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.