He’s back and ready for revenge.
Patriots quarterback Tom Brady returned to the team on Monday after sitting out the first four games of the 2016 regular season. Brady missed those games pursuant to a suspension imposed by the NFL on May 11, 2015. That suspension, of course, stemmed from Brady’s alleged involvement in, or knowledge about, an alleged conspiracy by two Patriots equipment personnel to slightly underinflate the footballs used in the 2015 AFC Championship Game—a game played 627 days ago. The conspiracy became known as Deflategate. It ultimately led to a federal litigation that, to the frustration of many, focused not on whether Brady “did it” but on whether NFL commissioner Roger Goodell lawfully determined that Brady “did it.”
While Brady’s return represents the final chapter of Deflategate, the controversy is poised to have an epilogue that could last for years. Below is a review of the flaws of Deflategate, a breakdown of where it now stands, and a look at what to expect from this point on.
Evidence of tampering proved elusive in Deflategate
To this day, there remains a debate in the scientific and football communities about whether Brady and two Patriots employees—Jim McNally and John Jastremski—hatched a plot to use footballs that were slightly below the required 12.5 pounds per square inch (PSI). This air pressure requirement is found in Rule 2 of the NFL’s official playing rules. Violation of it carries a modest $25,000 fine, although the league preserves the right to impose a more severe penalty. The league certainly invoked that right in Deflategate. An infraction that was designed to carry a $25,000 fine morphed into one of the harshest penalties in league history: Brady was suspended four games and the Patriots were fined $1 million along with losing a first-round pick in the 2016 draft and a fourth-round pick in the ’17 draft.
The case against Brady and the Patriots was substantially limited by the absence of direct evidence. Not one witness offered testimony about improperly deflating footballs. Likewise, none observed the kind of tampering postulated by the NFL or relayed hearing rumors about that kind of misconduct. There was also no video or audio recording of any inappropriate deflation, just as no electronic messages established that improper deflation took place. There was one text from McNally to Jastremski in May 2014 that might have alluded to the concept of ball deflation, but it was by no means conclusive and other explanations for the text, such as it referred to weight loss, have been offered. Even the NFL’s own attorney, Daniel Nash, admitted to U.S. District Judge Richard Berman that the league lacked direct evidence of a football deflation conspiracy.
Deflategate’s allegations were also widely criticized when scrutinized under basic principles of science. Although outside the scope of the litigation, several neutral scientists, most notably MIT Professor John Leonard, found that the PSI measurements of the Patriots’ footballs taken at halftime were exactly as expected and not indicative of tampering. Leonard and other scientists stressed that when applying Ideal Gas Law—a formula for measuring pressure when temperature, volume and number of gas moles are known—the Patriots’ footballs lost as much air pressure as science would predict.
Instead of being guided by direct evidence of wrongdoing, the league’s conclusions stemmed from inferences and extrapolations. The league highlighted several examples of circumstantial evidence that raised suspicions. There was the ambiguous “Deflator” text sent by McNally to Jastremski in May 2014. There was Brady complaining about the footballs’ air pressure following a Patriots-Jets game in October 2014. There was McNally taking the footballs to the bathroom for a minute and forty seconds prior to the AFC Championship Game. None of these facts, whether viewed in isolation or jointly, conclusively established that the Patriots plotted to deflate footballs. Nonetheless, the league reasoned that a deflation plot probably took place.
An independent investigation that wasn’t independent and accompanying stiff punishments
Aiding the league’s conclusion was a so-called “independent” investigation into Deflategate. The investigation’s co-directors were NFL general counsel Jeffrey Pash and NFL outside counsel Ted Wells. Not only were the chief investigators anything but “independent” from the NFL, but the NFL was itself implicated in the controversy: The referees assigned to the AFC Championship Game contributed to Deflategate by, among other things, forgetting the game balls and air pressure gauges at the hotel and failing to specify which gauge they used to test air pressure. The investigation also drew criticism for relying on the findings of Exponent, an engineering and scientific firm that previously advanced health arguments on behalf of tobacco companies. On May 6, 2015, the investigative report—dubbed the Wells Report—concluded that it was “more probable than not” that Brady had “general awareness” of a football deflation plot.
Goodell used the Wells Report to justify suspending Brady and punishing the Patriots. The commissioner reasoned that an intentional plot to deflate footballs was a deliberate maneuver to gain an unfair advantage—slightly underinflated football are, arguably, slightly easier to catch—and such misconduct undermined the integrity of the league. If Deflategate occurred, there was a clear logic in the NFL punishing both the Patriots and Brady: a team and quarterback that gain an advantage by using unauthorized equipment violates basic notions of fair play.
Goodell, however, has never explained why teams and players found to have intentionally broken other equipment rules in order to gain unfair advantages—such as players using stickum or heating footballs during cold weather games—deserved, at most, warnings while Brady and the Patriots deserved massive punishments. Even if the Wells Report and Exponent’s findings were entirely correct, the severity of the punishments levied against Brady and the Patriots struck many football observers as disproportionate and excessive.
In anticipation of this style of critique, NFL executive vice president Troy Vincent has written that the Patriots’ punishment partly reflects the team’s prior violation in Spygate—in essence, the Patriots didn’t learn their lesson the first time around. That logic, however, is itself vulnerable to critique: Spygate was a videotaping controversy in which the Patriots admitted fault and were severely punished, while Deflategate is an equipment controversy in which the Patriots deny fault. These two controversies, which occurred eight years apart and to some extent involved different persons, have very little to do with one another.
Brady challenges Goodell in arbitration while the Patriots stand pat
Brady would appeal his suspension, but under Article 46 of the collective bargaining agreement, Goodell had the right to serve as the arbitrator. Even though Brady testified under oath at the arbitration hearing and insisted that he had nothing to do with deflating footballs, Goodell not only upheld Brady’s suspension but recast Brady as a more active participant in the alleged plot. Goodell placed particular significance in Brady “destroying” his personal cell phone, an item for which the NFL had no explicit right to obtain. Goodell reasoned that Brady’s conduct was suggestive of partaking in, or even masterminding, a cover-up.
Goodell’s reasoning was vulnerable to criticisms in several ways. First, the NFL had Brady’s texts to Jastremski and Jastremski’s texts to Brady. It obtained them through Jastremski. Brady also made his phone records available to the NFL. In other words, it’s not clear whether Brady’s phone contained much information that the league didn’t already have. Brady also had reason to worry about leaks from turning over his phone. Brady was surely aware of the false “11 of 12 footballs were more than two pounds under 12.5 PSI” claim linked to a leak in the league’s office.
A four-game suspension for phone destruction also seemed excessive. Brett Favre, while playing for the New York Jets in 2010, received only a $50,000 fine for refusing to turn his phone over in a league investigation.
The Patriots, in contrast to Brady, reluctantly accepted the NFL’s punishment. In reality, the team had no choice. The Patriots could have appealed to Goodell—the same person who just punished them—but there was no reason to believe the outcome would have been any different. Suing the NFL would have been futile as well. Teams contractually accept the ultimate decision-making authority of the commissioner and agree to not sue the league.
Deflategate litigation begins and ends
After Goodell upheld Brady’s suspension, Brady and the NFL went to court over the lawfulness of Goodell’s arbitration award. Keep in mind that Goodell played multiple roles: Goodell, as the arbitrator, reviewed the punishment levied by Goodell, the commissioner, and Goodell the arbitrator determined that Goodell the commissioner got it right. Although federal law makes it extremely difficult for judges to vacate arbitration awards, Judge Berman of the U.S. District Court for the Southern District of New York did just that with Goodell’s award. Judge Berman identified several procedural flaws in the manner in which the NFL punished Brady. For example, the NFL failed to provide Brady with adequate notice of his punishment. Judge Berman also objected to Goodell refusing to let Brady’s attorneys question Pash—the co-lead investigator—or review the investigative notes. Judge Berman’s order enabled Brady to play the entire 2015 season.
But on appeal, two of the three judges from the U.S. Court of Appeals for the Second Circuit—Judges Barrington Parker, Jr. and Denny Chin—sided with the NFL, while Chief Judge Ronald Katzmann dissented. Judges Parker and Chin reasoned that whether Goodell correctly determined the facts was not the relevant legal question. Goodell, they opined, could have been completely wrong about Deflategate and nonetheless acted in accordance with the law. The legal question, at least as viewed by Judges Parker and Chin, was whether Goodell applied the very minimal safeguards found in Article 46. The two judges felt that Goodell did so, and with that, Brady’s suspension was reinstated.
Although the four federal judges split 2–2, the three appellate judges had the last word and two of them ruled for the NFL. Brady petitioned the Second Circuit for a “rehearing en banc,” where the active judges on the court would review the appeal. Although Brady had the support of amicus briefs filed by famed mediator Kenneth Feinberg, influential science and law professors and the Patriots, such rehearings are almost never granted. On July 13, 2016, Brady’s rehearing petition was denied. Two days later, Brady declined an opportunity to wage a similarly long-shot attempt at review by the U.S. Supreme Court. He instead agreed to serve his suspension.
NFLPA will not continue the appeal
After Brady dropped the appeal, the NFLPA cautioned that it could continue the appeal and petition the U.S. Supreme Court. It had until Oct. 13 to file such a petition. The NFLPA could have reasoned that it had an obligation on behalf all NFL players to continue the case. After all, the NFLPA, like Brady, clearly believed that Goodell acted outside the scope of Article 46 and that the NFL’s win in the Brady case sets a precedent for future NFL player-league disputes. Further, if the Supreme Court ultimate ruled for Brady, the quarterback would have been reimbursed the approximately $235,294 he lost during the four-game suspension.
On Sunday, the NFLPA announced that it will not continue the appeal. In a statement, the NFLPA revealed it had consulted with both Brady and attorneys and decided to accept closure.
The NFLPA’s decision likely reflects several points. For starters, the Court only takes about 1% of cases on petition, as at least four justices must grant certiorari in order for a case to be accepted for review. This percentage may be even lower with only eight justices on the court due to the death of Justice Antonin Scalia and the still-pending nomination of Judge Merrick Garland. Brady’s case also lacked features that would improve its odds for being picked. There is no federal circuit split related to the legal issues in Brady’s case, particularly with Minnesota Vikings running back Adrian Peterson losing his player discipline case in the U.S. Court of Appeals for the Eighth Circuit. The NFL’s system for resolving player-league disputes is also not reflective of more commonplace labor-management systems for dispute resolution. Lastly, the NFLPA has already spent millions on legal fees in the Brady case—to spend more on an effort almost certain to fail may have been unwise.
Only NFLPA can try to change Article 46
The NFLPA’s time is likely better spent on attempting to re-negotiate Article 46 to create the kinds of procedural safeguards that would have enabled Brady to better defend against disputable accusations. The right to review the NFL’s scientific evidence and investigative notes would have been crucial for Brady in the arbitration hearing. Similarly, a right to consistent punishments based on precedent would have reduced Brady’s punishment. But Brady was denied such rights because Article 46 doesn’t mention them. Along those lines, federal judges have told Brady—and also Peterson, for that matter—that courts won’t create rights for players that their union failed to negotiate.
Whether the NFLPA can and even wants to seek changes to Article 46 is another matter. The current CBA runs through the 2021 draft. Although the NFL and NFLPA could agree to amend it prior to that time, the NFL is not going to give up the current wording of Article 46 in exchange for nothing. Perhaps the NFL will demand stricter drug testing, an 18-game regular season or players’ permission to play more games abroad or some other item that would be valuable to the NFL.
The NFLPA needs to think carefully about whether “trading” for changes to Article 46 is worth whatever term or terms the NFL would demand in return. It is an article in the CBA that generates significant media attention but in fact impacts very few players—only about 1% or 2% of players have run afoul of Article 46. The NFLPA may be better off negotiating for superior economic terms for all players, and improved healthcare, pension and disability policies. These are terms that would impact all or most NFL players.
Brady’s return and his ability to sue for defamation
Brady was completely separated from the Patriots during his suspension. He could not appear at the Patriots’ facility for any reason or participate in practices or workouts, nor could he communicate with the coaching staff, among other restrictions. These restrictions, it should be noted, were standard operating procedure for a suspended player. Brady worked out with former teammates during his suspension as a way of keeping his skills sharp.
Brady returns to a 3–1 Patriots team that desperately needs a healthy quarterback. Backup Jimmy Garoppolo dazzled in Week 1 against the Arizona Cardinals and played similarly well in Week 2 against the Miami Dolphins until suffering a shoulder injury in that game. Head coach Bill Belichick then turned to rookie QB Jacoby Brissett, who suffered a thumb injury in a Week 3 win against the Houston Texans and struggled in a loss against the Buffalo Bills in Week 4. First up for Brady will be the 0–4 Cleveland Browns.
While Brady is no doubt excited to return and will be focused on the remaining 12 regular season games and (probably) playoff games, he might remain angered about Deflategate for some time. He has consistently denied the accusations and, as noted above, went so far as to testify under oath—upon risk of perjury charges—that the accusations were false. Brady also knows that, fairly or not, Deflategate is part of his legacy and will be available to his critics and detractors as a source of ridicule.
One way for Brady to combat the reputational effects of Deflategate would be to sue the NFL and Goodell for defamation. Defamation refers to untrue statements that are expressed as purported facts (that is, not opinions or subjective impressions) and that damage a person’s reputation. Defamation has two categories: libel, which refers to defamatory statements made in writing, and slander, which concerns spoken defamatory statements. Under the laws of Massachusetts, Brady can file a defamation lawsuit within three years of an alleged defamatory statement being made. After those three years pass, a defamation lawsuit would be time barred by the relevant statute of limitations.
Both Goodell and Vincent made specific, factual-sounding statements about Brady’s alleged misconduct in 2015, meaning, in theory, Brady has until 2018 to file a defamation lawsuit against them. Brady could contend that Deflategate has tarnished his reputation in ways that are substantial and worthy of millions of dollars in damages.
But don’t expect Brady to sue. For starters, he is probably tired of legal proceedings connected to Deflategate. He is signed through 2019 and presumably wants his focus during the next few years to be on helping the Patriots win additional Super Bowls. Filing what would be a high profile, time-consuming lawsuit could interfere with Brady’s time and energy. Brady, who is reportedly worth about $130 million and whose wife, supermodel Gisele Bundchen, is reportedly worth about $360 million, might also not see tremendous value in the possibility of winning additional millions in a civil judgment. To be sure, Brady would feel vindicated to defeat the NFL in court and he could donate any winnings to charity, but the allure of millions of dollars might not be as enticing for him as it would be to most others.
Setting aside the questionable appeal for Brady in bringing a defamation lawsuit, the NFL would be armed with several powerful defenses. First, the NFL would insist that its statements about Brady were true or were at least based on defensible information. Along those lines, as a public figure, Brady would need to establish that the NFL had “actual malice”—that is, the NFL intentionally or knowingly lied about him—in order to prevail in a defamation lawsuit. The NFL would presumably reason that it based its conclusions on findings made by both skilled attorneys and scientists and engineers at Exponent, and thus the NFL lacked any intent or knowledge to lie about Brady. Second, Brady would need to turn over evidence and materials to the NFL that he may not want to share. Third, the NFL would insist that terms in the CBA preempt a defamation lawsuit. This argument worked for the league in defense of a defamation lawsuit brought by Jonathan Vilma in the aftermath of Bountygate. Lastly, the NFL would stress that statements made by Goodell and Vincent are protected by the “judicial proceedings privilege.” This privilege exempts statements made in the course of a legal proceeding from defamation claims. It is uncertain if the privilege would apply to statements made prior to Brady and the NFL going to federal court, but it might.
Patriots might be able to recoup lost draft picks by trading Jimmy Garoppolo
One unintended benefit for the Patriots in Brady’s suspension was getting to see Garoppolo play and excel. The Patriots drafted Garoppolo in the second round of the 2014 draft out of Eastern Illinois University, the alma mater of Tony Romo and Sean Payton. With Brady entrenched as the starter and with Belichick’s custom of keeping Brady in even during blowout games, the Patriots had seen very little of Garoppolo until this season. He threw merely 31 passes during the 2014 and ‘15 regular seasons.
With Brady suspended, however, Garoppolo became the starter and excelled until he was injured. He completed 42 of 60 passes, threw for 4 touchdowns, with no interceptions, and amassed a QB rating of 119. A small sample size, to be sure, but given the dearth of quality of NFL quarterbacks, it stands to reason the Patriots now have a valuable trade commodity in the 24-year-old Garoppolo. The fact that Garoppolo is signed through the 2017 season also helps the Patriots. Teams like the San Francisco 49ers and Cleveland Browns may all be in the market for a QB entering the 2017 season. Garoppolo has thrown—and thrown well—against NFL defenses in regular season games. It would be ironic if the Patriots ultimately net more in a trade for Garoppolo than their lost 2016 first-round pick (which would have been the 29th overall selection) and a fourth-round pick in 2017. Given the oddity of Deflategate, any outcome is possible.
Michael McCann, SI’s legal analyst, is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law.