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Did a rogue staffer do it? How new revelations affect Deflategate

FOX Sports reported that a Patriots staffer is being investigated for tampering with the footballs central to Deflategate. Michael McCann explores the potential legal ramifications.

In a potentially game-changing development in the Deflategate saga, Fox Sports analyst Jay Glazer reported that NFL investigators have targeted a New England Patriots locker room attendant as a person of interest. According to Glazer, this attendant is believed to have transported Patriots footballs after they had been studied and approved by the referees before the AFC Championship Game between the Patriots and Indianapolis Colts.

• Super Bowl XLIX: News, features | Complete coverage of Deflategate

There is reported video of the attendant moving the footballs to a separate area and then bringing them to the field. Pro Football Talk's Mike Florio reported late Monday that the "area" in question was a bathroom and that the attendant was there for about 90 seconds. If the attendant was only in the bathroom for 90 seconds, it would suggest he was not using the area as a covert locale to deflate 11 footballs. To be clear, it is unknown if the attendant had anything to do with the footballs being under-inflated. It is clear, however, the attendant is identified as a possible cause. If it turns out the attendant is responsible, Deflategate would become similar to an under-inflated ball scandal at the University of Southern California in 2012. An equipment manager for the football team had deflated footballs. He took responsibility and claimed that neither then-coach Lane Kiffin, nor others had directed him.

As more accusations are directed at the Patriots, the team’s chairman and chief executive officer, Robert Kraft, made clear Monday night his team will aggressively contest what’s being alleged. In a decidedly resolute tone, Kraft told media he’ll demand a full apology from the NFL if his team is cleared. His comments serve as a warning to NFL commissioner Roger Goodell that the Patriots are prepared to topple Deflategate.

Today’s developments raise a number of important questions for the Deflategate investigation going forward.

Will the Patriots locker room attendant be truthful?

An NFL investigation sounds like a law enforcement investigation, but it’s very different and far more limited. While law enforcement can use various forms of pressure on persons of interest, including threats to seek criminal charges against them, the NFL has comparatively limited leverage over a team’s locker room attendant. The NFL obviously has no ability to arrest the Patriots attendant. Less obviously, the NFL can’t fire him, either. The attendant works for the Patriots, not the NFL. While NFL teams are required to cooperate with league investigations, the NFL can only pressure the Patriots to fire him. He hasn’t broken any criminal laws and at worst could face a civil lawsuit.

Also, the Patriots attendant won’t be speaking with NFL investigators under oath. He wouldn’t face the risk of perjury charges if he knowingly lied to them. In other words, if the attendant wanted to protect someone else on the Patriots from the blame, he could do so and take the fall.

Does the locker room attendant have his own attorney?

In any scenario where a company and an employee may have divergent interests in a legal matter, it is usually advisable for the employee to hire his or her own lawyer. Here, the Patriots attendant might seem to have the same interests as the Patriots -- at least initially. Neither the team nor the attendant wants him to be identified as the culprit. If he’s blamed, the Patriots will also be held at fault. The penalty for the Patriots might be fairly modest if the attendant had acted on his own, but the Patriots would still “look bad” in the eyes of NFL media and fans and still be responsible for having him on the staff.

• KING: The Super Bowl of ball inflation; more MMQB

The attendant’s interests may become divergent from the Patriots if he tells NFL investigators that someone above him directed him. It is not beyond the realm of possibility that the attendant could say that a coach or player instructed him to deflate the footballs and then for the coach or player to dispute the attendant’s account.

At that stage, the team would want to prove the attendant is lying. The team might, for instance, threaten the attendant with a lawsuit. An attendant who doctors footballs could be sued with tortious interference with business relations, as the team could argue that he caused harm for the franchise in its relationship with the league. While the attendant may not have “deep pockets” in a lawsuit, the point of the lawsuit would be to clearly separate him from the franchise and to paint him as a rogue actor.

How would the attendant’s motive impact the Patriots?

The Patriots penalty for a locker room attendant letting a little air out of the footballs before the game would be dramatically different if the attendant acted on his own (as the USC team manager allegedly did) or under direction from a team staffer.

The idea that the attendant would act on his own may strike you as completely unbelievable. We’ve heard Tom Brady say how much he cares about football preparation. And we know that Bill Belichick, while carefully distancing himself from ball preparation, enjoys a reputation for having total control over his team. Could an attendant be so devoted to the Patriots winning that he would act on his own? And could he be so skilled as to manipulate footballs in ways that neither Brady nor anyone else detected? Seems unlikely, especially since teams usually don’t hire “super fans” as employees. Teams, in fact, consciously try to avoid hiring people who may be a little too enthusiastic for the team.

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But to give the Patriots the benefit of the doubt, teams can make mistakes hiring people and can make mistakes supervising them as well. If it turns out the attendant acted alone, the Patriots would still be at fault for breaking an NFL rule. The NFL could also punish the Patriots for failing to use proper hiring and supervising techniques that would have prevented a renegade attendant from causing a league crisis. But the penalty for this type of finding might be relatively modest, such as a fine or loss of a late-round pick.

If instead the locker room attendant acted with direction from Brady, Belichick or someone else of authority, the consequences for the Patriots would be significant and probably dire. In addition to shame, the Patriots would likely face a penalty along the lines of a maximum fine of $500,000 and a loss of an early round pick or two. The person who “gave the order” could also face a suspension.

How crucial is the role of the NFLPA?

An overlooked player in Deflategate is the NFLPA. It has instructed Patriots players to not speak with NFL investigators, at least for the time being. Legally, it is not clear if a Patriots player “has to” cooperate with this investigation. While players are contractually obligated to give their “best efforts and loyalty” and avoid “conduct detrimental to the league,” it is less clear that they are obligated to cooperate in a league investigation concerning impressible game equipment.

If the attendant points blame at a Patriots player, watch for the NFLPA to aggressively defend the player. The NFLPA does not want a player to take the fall for Deflategate.

How should the NFL consider the public's response to Belichick’s scientific explanation?

Ball manufacturer on Bill Belichick's Deflategate explanation: 'That's b.s.'

On Saturday, Belichick announced the Patriots had conducted tests on game balls and the tests established that the loss of inflation is consistent with natural phenomena. Since then, numerous scientific opinions have been offered. Some have enthusiastically supported Belichick, while others claim that he is completely wrong. Monday afternoon, for example, famed astrophysicist Neil deGrasse Tyson tweeted, “For the Patriots to blame a change in temperature for 15-percent lower-pressures, requires balls to be inflated with 125-degree air.” Football data analyst Warren Sharp has also found unusual statistical trends in regards to the Patriots fumbling the football. But HeadSmart Labs has conducted a study that appears to corroborate Belichick.

In addition to scientists, Wilson, the official makers of NFL footballs, has weighed in and called Belichick’s account “b.s.” Wilson obviously has an interest in protecting its image and brand, but the larger point is you can find an expert opinion backing up virtually any opinion you might have about Belichick’s explanation.

As I wrote following Belichick’s press conference, the only way for the NFL to assess Belichick’s explanation is to independently test it. Hearing the volunteered opinions of purported experts, whose interests in weighing in may be biased or unknown, likely creates more noise than clarity. Watch for the NFL to conduct tests on the footballs to see if Belichick’s view should be validated or refuted.

Not a question: The Patriots will be playing in Super Bowl XLIX. Belichick will be their coach. Brady will be their quarterback.

Despite calls by some media that the Patriots should be barred from the Super Bowl, or that Belichick or Brady be suspended for the game, none of those things is going to happen. First, attorney Ted Wells, who is co-directing the Deflategate investigation with NFL executive Jeff Pash, informed the media Monday the investigation will take weeks. There will be no resolution before the Super Bowl. Second, the NFL constitution makes clear that removing a team from a game, or vacating a win, is virtually impossible and would require support of at least three quarters of NFL ownership groups. Third, NFL sponsors would be aghast at the Patriots being removed, and Patriots fans could consider legal action (I explain these points in an earlier article on Deflategate).

Can the Patriots receive a fair hearing if the NFL or the referees are at fault? And could the Patriots, Belichick or Brady sue the NFL?

There remains a good possibility that the Patriots have done nothing wrong. The Deflategate controversy might merely be the product of natural weather and atmospheric phenomena, bad timing (occurring right before the Super Bowl) and negative preconceptions about the Patriots formed as a result of Spygate. Jealousy of Belichick and Brady could be factors, as well.

The Patriots might reasonably doubt the NFL can fairly and accurately assess whether they are at fault. After all, the NFL commissioner’s office has come under fire for alleged dishonesty and incompetence stemming from the Ray Rice videotape scandal, and a lawsuit filed by the NFLPA on behalf of Adrian Peterson could further undermine the commissioner’s office. The Patriots may also wonder about reports that other teams have been implicated in potential ball inflation issues and yet the league may not have acted or acted quietly. But now the Patriots are the target of an extensive league investigation that has surely embarrassed Kraft and will be a cloud over the team in the Super Bowl.

The commissioner’s office is also responsible for supervising the referees who officiated the AFC Championship Game. These referees seemed oddly unaware of the ball under-inflation issue in the first half of that game. We don’t know why. A skeptic of Goodell might question if he has incentives to direct blame onto the Patriots and away from his office.

Unfortunately for the Patriots, if the team is mistakenly found at fault, there is virtually nothing the team can do. Under the league’s constitution, once the commissioner or the NFL’s Executive Committee (comprised of one representative, typically a controlling owner, from each of the 32 NFL teams) issues a punishment, the punishment is “final, conclusive and unappealable.” This approach may seem unfair, but it is how all of the major sports leagues do business. They do not want courts or arbitrators questioning their decisions and slowing league action.

If an owner really doesn’t like a decision from the commissioner or fellow owners, that owner can simply put his or her team up for sale, net a generous profit and exit the league. Or the owner can try to get support among other owners to fire the commissioner. But that’s it. Kraft may get his apology from Goodell, but by then his franchise will already have been badly damaged.

Goodell's history gives Sherman's conflict of interest claims weight

Alternatively, if Brady or Belichick (or someone else on the Patriots) is mistakenly blamed for Deflategate, that person could file a defamation lawsuit against the NFL. Jonathan Vilma sued the NFL for defamation in response to accusations against him in Bountygate. A defamation lawsuit would be a difficult because Brady and Belichick are public figures, which by law requires they show the NFL acted with “actual malice” in falsely accusing them. That is, they’d have to show the NFL knowingly spread falsehoods about them, as opposed to simply getting the facts wrong.

One thing is for sure: Deflategate is a long way from resolution and its fallout could be immense.

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.