What are Tom Brady's options after release of Deflategate report?
After three months, an NFL-sponsored investigation into a deflated ball controversy—dubbed by some “Deflategate” or “Ballghazi”—involving the Super Bowl Champion New England Patriots in the AFC Championship Game on January 18, 2015 has reached a controversial, yet cautiously-worded conclusion: it is “more probable than not” that star quarterback Tom Brady was “at least generally aware” two Patriots employees had intentionally deflated balls.
This conclusion, contained in a 234-page report authored by attorney Ted Wells, alleges that Patriots locker room attendant Jim McNally and equipment assistant John Jastremski acted in “a deliberate plan” to violate gameplay rules. Their alleged plan was to keep the air pressure of game balls so low that it violated an NFL rule requiring that balls be inflated to between 12.5 to 13.5 pounds per square inch (PSI). More positively for the Patriots, the Wells Report cleared Patriots owner Robert Kraft, Patriots head coach Bill Belichick and other Patriots employees of wrongdoing. To the extent critics of Belichick hoped to link him to Deflategate, the Wells Report does not facilitate that connection.
While football experts have vigorously debated whether slightly underinflated footballs offer much of a tactical advantage, the general consensus is that these footballs are somewhat easier to catch. Even if the advantage proves inconsequential in a game—and the Patriots defeated the Indianapolis Colts 45-7 in the aforementioned AFC Championship Game—the NFL has a clear rule on this subject that teams must follow.
Potential penalties for the Patriots
The NFL Game Operations Manual dictates that violations of the PSI rule triggers a modest $25,000 fine. The Patriots, with a reported net worth of approximately $1.5 billion, can easily pay such a fine. NFL commissioner Roger Goodell, however, is authorized to impose a stiffer penalty than the one prescribed by the game operations manual. Specifically, Article 8.13 of the NFL’s Constitution empowers Goodell to issue penalties for violations of rules that “affect the competitive aspects of the game.” It is possible Goodell could levy onto the Patriots a much higher fine (up to $500,000 per league rules).
Although less likely, Goodell could also take away future draft picks away from the Patriots. There is precedent for such a sanction. In the way of the 2007 Spygate scandal, the Patriots were fined $250,000 and forced to forfeit their 2008 first-round pick. In 2012, the New Orleans Saints were fined $500,000 and required to forfeit their 2012 and 2013 second-round picks as a result of Bountygate.
There is no remedy in the NFL constitution that would empower Goodell to vacate Patriots wins or take away the teams’ victory in Super Bowl XLIX. Such a remedy, moreover, would seem wholly inappropriate given that the underlying misconduct concerned slightly underinflated footballs. This point seems especially true given that Kraft and Belichick were cleared. The most likely sanction for the Patriots is a fine.
How the report accuses Brady
The report’s depiction of Brady is its most stunning feature. The report directly contradicts statements the former MVP made in a press conference on January 22, 2015. At the time Brady insisted, “I have no knowledge of any wrongdoing” and “I would never do anything to break the rules. I believe in fair play and I respect the league and everything they’re doing to try to create a very competitive playing field for all the NFL teams.”
While at no point does the report directly claim that Brady knew about deflated balls, it at various points implies Brady had clear awareness. For instance, on page 18, the report highlights suspicious frequency in phone and text communications between Brady and Jastremiski:
[E]vidence of Brady’s awareness includes a material increase in the frequency of telephone and text communications between Brady and Jastremski shortly after suspicions of ball tampering became public on January 19. After not communicating by telephone or text message for more than six months (based on data retrieved from Jastremski's cell phone), Brady and Jastremski spoke by telephone at least twice on January 19 (calls lasting a total of 25 minutes and 2 seconds), twice on January 20 (calls lasting a total of 9 minutes and 55 seconds) and twice on January 21 (calls lasting a total of 20 minutes and 52 seconds) before Jastremski surrendered his cell phone to the Patriots later that day for forensic imaging. ….. Brady also took the unprecedented step of inviting Jastremski to the QB room (essentially Brady's office) in Gillette Stadium on January 19 for the first and only time that Jastremski can recall during his twenty-year career with the Patriots, and Brady sent Jastremski text messages seemingly designed to calm Jastremski (“You good Jonny boy?”; “You doing good?”). For his part, Jastremski sent Brady text messages confirming that he was okay (“Still nervous; so far so good though”) and cautioning Brady about questioning (“FYI...Dave will be picking your brain later about it. He’s not accusing me, or anyone...trying to get to bottom of it. He knows it’s unrealistic you did it yourself...”).
The report describes Brady as uncooperative in the investigation. On Page 20, the report claims:
[A]lthough Tom Brady appeared for a requested interview and answered questions voluntarily, he declined to make available any documents or electronic information (including text messages and emails) that we requested, even though those requests were limited to the subject matter of our investigation (such as messages concerning the preparation of game balls, air pressure of balls, inflation of balls or deflation of balls) and we offered to allow Brady's counsel to screen and control the production so that it would be limited strictly to responsive materials and would not involve our taking possession of Brady's telephone or other electronic devices.
Low burden in accusing Brady
The report adopts a noticeably low bar in accusing Brady of serious wrongdoing.
First, the report employs the burden of persuasion found in civil trials: “more likely than not” or preponderance of evidence. This was expected, as the league's Policy on Integrity of the Game & Enforcement of Competitive Rules requires it. Wells was thus barred from using the higher “beyond a reasonable doubt” burden found in criminal trials. Internal investigations also normally use the preponderance of evidence burden or a burden akin to it. Still, Brady is now the subject of widespread criticism. One might wonder if the report had instead used a higher burden of proof, such as “clear and convincing,” whether the report’s portrayal of Brady would be very different.
Second, the report asserts that Brady was “at least generally aware” of wrongdoing committed by others. This “at least generally aware” test seems awfully inviting of blame. What exactly is “general awareness?” The report never defines it but presumably it could include very low levels of knowledge by Brady.
Third, the report does not appear to consider that Brady might not have wanted to implicate McNally and Jastremski unless he had specific awareness of wrongdoing. Some of Brady's alleged text messages, in fact, suggest he was trying to learn more about what happened rather than trying to cover up wrongdoing. Perhaps to Brady, “general awareness” was not enough to point the finger at others.
Potential consequences for Brady
More than anything, the Wells Report causes significant and perhaps irreparable damage to Brady’s reputation. While the report doesn’t outright call Brady a liar or a cheater, it certainly leads readers to link Brady with those adjectives. Brady is no ordinary NFL player and has a great deal to lose. The 4-time Super Bowl winner is considered by many to be the best quarterback of his generation and one of the two or three greatest quarterbacks in NFL history. Brady, now 37 years old, is famously conscious of his image. In press conferences and interviews, he often shares generic and positive statements, much like other players who play for Belichick. Some expect Brady to pursue a political career following his playing days. The Wells Report won't help that pursuit.
In addition to the harm done to his reputation, Brady could face an NFL fine or suspension. Whether his alleged misconduct is considered of the “on-field” or “off-field” variety, Goodell is authorized to fine or suspend him. The commissioner could reason that Brady’s “general awareness” of game rule misconduct and his apparent unwillingness to share all material information constitute poor sportsmanship and conduct detrimental to the integrity of the NFL. Given that the Patriots’ apparent violation of the PSI rule only carries a $25,000 fine and given that Brady himself is not accused of breaking the rule, it seems unlikely that Brady would face an expensive fine or a suspension of more than one game. He would also have the ability to appeal any suspension.
Brady could respond to the allegations in several ways.
1) Brady could accept responsibility and move on
Brady could issue a brief statement saying, in so many words, he takes responsibility for what is contained in the Wells Report and he’ll accept any punishment by the NFL. For Brady, the upside to this approach would be that it essentially ends the Deflategate controversy. The story would quickly become much less interesting if in fact the Wells Report is correct. Fans and Goodell might also applaud Brady for saying “I’m sorry.”
The downside for Brady would be that he would have admitted to engaging in deceitful conduct and behavior unbecoming of a player of his stature. He would presumably lose some fans in the process. Brady’s admission could also trigger an NFL suspension and, more importantly, badly harm his reputation. For the rest of his career, Brady could be ridiculed by opposing teams’ fans. He would be portrayed as a cheater, a label that critics of the Patriots often try to attach to the team since the Spygate scandal.
While unlikely, Brady admitting to wrongdoing could also lead his sponsors to reconsider their endorsement deals with him. Sponsors typically negotiate “morals clauses” that allow the sponsor to suspend or terminate payments to athlete endorsers when the athlete engages in controversial conduct.
2) Brady could deny the allegations and move on
Brady could instead issue a brief statement denying the allegations contained in the Wells Report and insist that he will never again talk about the subject. The upside for Brady in adopting this tactic would be that he goes on the record disputing the report but doesn’t expose himself to further questioning about it. This type of statement might also end the Deflategate controversy, especially if the NFL doesn’t punish Brady. Essentially, Brady and the NFL would agree to disagree.
The downside to this approach is obvious. Brady would be portrayed as hiding from the allegations, which would naturally lead some to disbelieve him. Brady also can’t control what questions journalists pose to him and, as Seahawks running back Marshawn Lynch knows, NFL rules require he answer questions in press conferences. For some time, media would repeatedly ask Brady about the Wells Report and he would have to say, “no comment” or—to borrow Mark McGwire’s famous line—“I’m not here to talk about the past.” This type of questioning could become a distraction to Brady and his teammates.
3) Brady could blame the NFLPA and his lawyers
Brady could also dispute the Wells Report and attribute his unwillingness to share information with NFL investigators to directives given to him by the National Football League Players’ Association or his attorneys.
In the immediate aftermath of the Deflategate controversy, the NFLPA instructed Patriots players to not speak with NFL investigators. Also, unlike Patriots officials, Brady’s legal obligation to speak with Wells was not clear. Brady, like other NFL players, had a contractual obligation to give his “best efforts and loyalty,” but his legal relationship with the NFL is more complicated than the NFL’s relationship with Kraft, Belichick, McNally and other non-union Patriots employees who were subject to the Deflategate probe. Brady is a member of a union that has collectively-bargained employment protections for players suspected of wrongdoing. No requirement or rule expressly compelled Brady to assist in a league investigation over game equipment. It isn’t as if Wells was working for both the league and players’ association: only the NFL retained him.
Brady could also cite likely instructions from his attorneys that he not share his phone and other evidence. While some may automatically reason that Brady’s refusal to share his emails and texts suggests he was hiding something, there are three other ways of looking at a refusal to share. First, employers do not have an automatic right to access all of an employee’s electronic files, especially on those employees’ personal equipment (such as an iPhone an employee purchases for personal and work use).
Second, Brady’s employer is the Patriots, not the NFL. To the extent his employer had a right to access, Brady’s attorney might have insisted materials could only be shared with the Patriots. This is a fairly unconvincing argument. The Patriots play in a league of franchises and are contractually obligated to cooperate in league investigations. Still, it is a concern that Brady’s attorney might have raised.
Third, Brady may have been concerned about personal information in his electronic records being leaked to media. The NFL is infamous for leaks, including throughout the Deflategate scandal. Even though Wells and his team assured Brady they were only interested in relevant information, it would be understandable for Brady and his attorneys to question whether that assurance would be absolute.
The drawback for Brady in blaming the NFLPA or his attorneys would be that his critics would say he is blaming others for his own mistakes.
4) Brady could attack the Wells Report
In addition to attributing responsibility to directives from the NFLPA and his attorneys, Brady could also directly attack the Wells Report. Brady might build on comments by Kraft. Although the 72-year-old billionaire says he “accepts the findings of the report,” he adds, “To say we are disappointed in its findings, which do not include any incontrovertible or hard evidence of deliberate deflation of footballs at the AFC Championship game, would be a gross understatement.”
Along those lines, while Wells is a well-respected attorney and his firm, Paul Weiss, is considered one of the best in the nation, Brady could highlight inherent limitations in the Deflategate probe.
First, the NFL hired Wells and his firm, thus limiting the “independent” quality of the report. When a business hires a law firm, an attorney-client relationship is formed. That relationship requires the law firm to advocate for the client. Wells also has a longstanding relationship with the NFL, having authored the 2014 probe into the Miami Dolphins and bullying. Is it a surprise, Brady might cynically ask, that Wells is directing blame onto a player—and the player who happened to be the first named plaintiff in the 2011 antitrust lawsuit brought by NFL players against the NFL—rather than onto an owner or coach? Brady’s dad, Tom Brady Sr., seems to have adopted this view, already dismissing the Wells Report as “Framegate.”
Second, as in any independent investigation, Wells lacked the power of subpoena. This means he could not compel disclosure of all evidence nor force a witness to speak with him. As a result, Wells might not have uncovered all of the relevant information. His blaming of Brady (and McNally and Jastremski) could thus reflect an incomplete narrative. After all, could other players have been more “generally aware” of wrongdoing than Brady?
Third, witnesses did not speak with Wells under oath. This means if witnesses lied to Wells, they would have done so without the threat of perjury charges. While there is no immediate reason to suspect lying or exaggeration occurred in the investigation, the lack of sworn testimony would be another structural limitation Brady might highlight.
5) Brady could file a defamation lawsuit against Wells, the NFL and Goodell
The boldest move by Brady would be to sue Wells, the Paul Reiss law firm, the NFL and Goodell for defamation. Brady could take a page from Jonathan Vilma’s defamation lawsuit against Goodell in the aftermath of the Bountygate report. Goodell had claimed that “prior to a Saints playoff game in January, 2010, defensive captain Jonathan Vilma offered $10,000 in cash to any player who knocked [opposing quarterback Brett] Favre out of the game.” Although not successful in court, Vilma’s lawsuit helped in getting his suspension overturned.
In a defamation lawsuit, Brady could contend that the statements contained in the Wells Report have caused him clear reputational harm. Brady would face an uphill battle in court. As a public figure, he’d have to prove false statements were made with “actual malice” (meaning intentionally or with knowledge). Brady would also be subject to pretrial discovery should his lawsuit advance past a motion to dismiss. Pretrial discovery would require Brady to answer questions under oath, a time-consuming and acrimonious process.
Don’t expect Brady to sue the NFL, but it would send a firm message that he believes he has been—as his dad says—framed.
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.