How NFL's lack of evidence could postpone Tom Brady's suspension until 2016
2:04 | NFL
How NFL's lack of evidence could postpone Tom Brady's suspension until 2016
Tuesday September 1st, 2015

It was a frigid day in early February when Margaret McCabe suggested that I design an undergraduate sports law course around an emerging and bizarrely compelling controversy about slightly under-inflated footballs. Two weeks earlier, the New England Patriots had blown out the Indianapolis Colts 45–7 in the AFC Championship Game. But only hours after the game, grumblings about the air pressure in the Patriots’ footballs would surface. They still haven’t gone away.

Did the Patriots knowingly or accidentally deflate footballs? Were atmospheric conditions interfering with the footballs’ air pressure? How can we be sure the footballs were even deflated? McCabe, the associate dean of academic affairs at the University of New Hampshire School of Law, wisely realized where Deflategate was headed and how it could serve as a powerful teaching device. 

“This could eventually go to court,” McCabe reflected, “and it implicates all sorts of interesting legal, science and journalism issues that students could learn from.”

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My conversation with McCabe took place as she, UNH Law interim dean Jordan Budd and I planned how I would teach an undergraduate course at UNH in the fall. UNH’s Discovery Program enables graduate faculty at UNH to instruct undergraduate students on unique and engaging subjects. Discovery is an ideal fit for a topic like Deflategate since the program emphasizes problem solving and scientific reasoning—two big themes in Deflategate.

I’m the first member of the UNH Law faculty to participate in Discovery, which reflects the newness of UNH Law. From 1973 to 2010, our law school was named the Franklin Pierce Law Center. We then merged with UNH and became part of the state university system, and it’s been an amazing partnership. Our U.S. News and World Report ranking has climbed 55 spots over the last three years and we now have one of the highest job employment rates among law schools in New England. We’ve been ranked in the Top 10 in intellectual property law for decades and we’ve recently added exciting programs, including the one I direct: the Sports and Entertainment Law Institute.

On Wednesday, Sept. 2 at 5 p.m. ET, I’ll begin a three-hour session and approximately 70 students will be in attendance. So will several TV personalities, including Fox Sports 1’s Katie Nolan, as they are part of TV crews running features on this course. I realize there is a distinct possibility that U.S. District Judge Richard Berman will issue his much awaited decision right before or even during my class. I’m sure my students would let me know. I’ll then tell them that, yes, Judge Berman’s order will be on the final exam.

Some have asked me if this class is serious. “How could you teach a course on Deflategate? That’s ridiculous!

While Deflategate may turn out to be a fictitious controversy, my course on it will be quite real. In fact, it will be one of the most challenging courses my students take at UNH. The course will also help students prepare for the professional world, whether or not that world includes sports.

Don’t believe me? Take a look at my syllabus. I have designed Deflategate to be an intensive course that first teaches students about the core foundations of law and journalism and then asks them to apply what they have learned to Deflategate.

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To illustrate, consider the relevance of labor law and contract law. Tom Brady, as a member of a labor union, enjoys legal rights that are very different from those of Robert Kraft. Through the collective bargaining agreement, Brady has the right to challenge the commissioner’s punishment in arbitration. He also can highlight how no collectively bargained policy requires that he turn over his cell phone, texts or emails. Brady, moreover, has the right to know under which NFL rules he has been accused and challenge the application of rules that were not collectively bargained. In sum, Brady has a bundle of rights that emanate from a labor agreement.

Kraft is in a very different legal situation. By purchasing a franchise, he contractually waived away certain legal claims that he would otherwise have against the franchisor (the NFL) and those who own NFL franchises. Many Patriots fans have criticized Kraft for not challenging the NFL’s steep punishment, but fans with legal backgrounds know that Kraft had few if any legal grounds to take on the NFL. This underscores how owners of pro teams are more like custodians of those teams: they agree to follow the league constitution, bylaws and other documents that restrict their ownership.

While the law has played a major role in Deflategate, other fields have also proven to be crucial in trying to untangle what happened. Physics and engineering, specifically, have proven very important. In that vein, we will consider some of the main scientific theories that have arisen about “what happened to the footballs?”

We’ll also discuss how journalism has shaped the legal dynamics of Deflategate. Several widely distributed media reports filed in the aftermath of the AFC Championship Game—and notably attributed to league sources—have been proven false. Those reports contributed to the frenzy and may have played a crucial role in the NFL’s decision to commission the Wells Report, a not-so-independent “independent investigation” that took four months to compile and led to a much decried 243-page document.

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In actuality, only about a quarter of the Deflategate course will center on Deflategate. We’ll explore other important legal controversies that have shaped the current state of American sports law. For instance, the course will examine the antitrust law implications of age restrictions in the NBA and NFL, the trademark law ramifications of the Redskins team name and the duties of being a sports agent. The path-breaking topic of whether college athletes should be paid for their labor and their names, images and likenesses, will also be studied. Group exercises will likewise play a major role in the course. For instance, there will be an exercise involving the negotiation and drafting of an NFL contract. Students will be broken up into groups of four, with two students assigned the task of representing the Patriots in a contract negotiation with a player and the other two students taking on the role of the agent for that same player. They’ll need to negotiate within the confines of the CBA and team payroll expectations.

As I see it, there is no better way to teach the law than through sports. You can take complicated and occasionally dry topics—like antitrust law and arbitration law—and make them instantly accessible. All it takes is discussing them in an informed way and in the context of sports. That is why students sometimes say they learn more in a sports law course than in any other course: they are seeing the law in a setting that fascinates them and so they learn the law better. Sure, most of the students won’t ever own sports teams or represent star quarterbacks in negotiations, but having an understanding of contract law, intellectual property law and labor law, among many other important legal topics, will serve them well in the professional world.

Oh, some have asked me about guest speakers. I’m still in the process of lining up guests, but my SI colleagues Peter King and B.J. Schecter will be among those who present. As of now, however, it doesn’t appear that Roger Goodell, Tom Brady or Robert Kraft will be joining them. But the semester is young and if they can’t reach a settlement in court, I hope they give McConnell Hall a try. I’ll have seats ready for them. Plus, if there’s padding on those seats, I’ll make sure they are properly inflated.

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 teaches an undergraduate course at UNH titled “Deflategate.” McCann is also the editor of the forthcoming “Handbook of American Sports Law” (Oxford University Press).

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