There's no doubt that both Tom Brady and the New England Patriots will fight back when it comes to their Deflategate punishment. Michael McCann details their options.
The New England Patriots and quarterback Tom Brady have both been punished severely by the NFL for breaching the integrity of football and failing to fully cooperate in a league investigation. The Patriots will lose their first-round pick in the 2016 NFL Draft and fourth-round pick in the 2017 NFL Draft and face a $1 million fine. For his part, Brady will be suspended for the first four regular season games of the 2015 season. Both will now turn their attention to appeals, which could wind up in court. The legal strategies for the Patriots and Brady are complementary of one another, but also implicate different NFL legal documents and possibly different state and federal laws. As explained below, Brady, as a member of a union, is entitled to far more legal protection in an appeal than are the Patriots, a franchise in a professional sports league.
Due process in an appeal
Brady has a right under Article 46 of the collective bargaining agreement to appeal his suspension. NFL commissioner Roger Goodell will decide who hears Brady’s appeal. Goodell might select himself, although given that Goodell hired attorney Ted Wells to conduct the investigation, it appears Goodell wants to keep himself at arm's length. Goodell might also be sensitive to concerns that the NFL is implicated in the controversy. There are lingering questions about how the ball pressure was measured and whether some NFL officials might have been biased against the Patriots. If Goodell designates someone else to preside over Brady’s appeal, that person could be a former NFL employee who regularly hears appeals, such as Harold Henderson who heard Adrian Peterson’s appeal (and ruled for the NFL). Or it might be someone who is perceived as more neutral, such as retired Judge Barbara Jones who heard Ray Rice’s appeal (and ruled for Rice).
In an appeal, Brady would have a right to counsel and a formal hearing. The NFLPA would bring the appeal on Brady’s behalf and union attorneys would collaborate with Brady and his legal team. Watch for prominent sports litigators Jeffrey Kessler and David Greenspan, both of whom have had success in player cases against the NFL, to be part of a Brady appeal. Representatives for Brady would argue that the NFL’s punishment is excessive and arbitrary based on precedent. They would also attack the evidence purportedly connecting Brady to wrongdoing.
An appeal would lead to one of three outcomes: Brady’s suspension is overturned, reduced or sustained. In recent years, two players—Jonathan Vilma and Ray Rice—have used appeals to overturn NFL suspensions. Normally, however, a successful appeal is one where a player’s suspension is reduced rather than overturned.
Unlike Brady, the Patriots have no collectively bargained right to an appeal. Their only source for appeal is to reach out to Goodell and hope he or a designate of his choosing revises the punishment. The Patriots are members of a franchise of leagues and are contractually bound to follow the NFL’s constitution and other legal instruments. The NFL’s constitution makes clear teams can’t take their grievances to court and that any attempt to do so would likely be futile. Like the other 31 NFL ownership groups, Kraft has agreed to abide by the Constitution and assented to not sue the league or other owners.
In an appeal to Goodell, Kraft would implore the commissioner to reconsider the severity of the penalty. Kraft might ask other teams’ owners to weigh in privately, as well. Unfortunately for Kraft, this approach would likely fail. Goodell is now wedded to this historic penalty. If he reduces it, some would argue it is because of Goodell’s perceived close relationship with Kraft or because Kraft is powerful. Others would describe Goodell as weak and question why he would impose such a harsh penalty in the first place. Goodell lowering the Patriots penalty would also risk a slippery slope effect: it would create precedent for other teams’ owners to petition the commissioner for leniency.
Argument that punishments are “arbitrary”
One of the key arguments for Brady in an appeal would be that there is no logic for a four-game suspension. Brady would contend that a four-game suspension for possibly being aware that two other Patriots employees may have deflated footballs is wholly unsupported by any resemblance of precedent. Brady would point out that Ray Rice initially received a two-game suspension for domestic violence, and Adrian Peterson received a minimum six-game suspension after pleading no contest to a charge he beat his child. Both Rice and Peterson’s matters seem obviously “worse” than Brady allegedly being “generally aware” about certain footballs not having enough air. Yet, Brady would stress, his suspension is similar to those of Rice and Peterson. Brady might insist that a more analogous to his situation is that of Brett Favre. The NFL only fined Favre $50,000 for failing to cooperate in an investigation concerning inappropriate text messages sent while he was a member of the New York Jets.
Brady would also contend that he should not be punished for failing to turn over his phone. Employers do not have an inherent legal right to access employees’ personal technology, and there is no collectively bargained language that indicates Brady was obligated to turn over the phone.
While Brady was assured that Wells was only interested in data related to the investigation, Brady may have had privacy concerns. We do not know what information was on his phone. As an exercise, think about what information you store on your phone and whether you would want it shared with a law firm hired by your employer. Often people have information about family members’ health or other sensitive topics on their phones. Brady was likely also troubled by the NFL’s struggles with media leaks.
The Patriots arguably have a more persuasive argument than Brady that their punishment is “arbitrary,” yet the team has a weaker legal claim to it warranting a reduction in penalty.
Consider some of the Patriots’ likely arguments that their penalty is excessive:
1. NFL rules indicate the underlying offense is minor.
Despite the NFL likely spending a small fortune on legal fees in an attempt to solve the Deflategate mystery, the actual transgression at issue—two locker room assistants allegedly letting out too much air out of a football—is considered relatively minor by the NFL’s own rules. The NFL Game Operations Manual, which governs rules designed to promote fair play, stipulates that violations of the PSI rule trigger a mere $25,000 fine. The modest fine could be interpreted to suggest the NFL views slightly underinflated balls much like the legal system views jaywalking and parking tickets: low level worries. Yet the Patriots received one of the harshest team penalties in NFL history.
2. The underlying offense appeared to have little or no impact.
Over the last four months, football commentators have debated whether a slightly underinflated football benefits a quarterback and his receivers. Many commentators assert that such a football is a little easier to catch, but the general consensus is that any advantage is minimal. With that in mind, the Patriots trounced the Indianapolis Colts 41-7 in the AFC Championship Game. This lopsided result indicates the footballs likely had no impact on which team won and which team lost. In fact, Brady and his receivers seem to play better when properly inflated balls were used in the second half, when the Patriots outscored the Colts 28-0.
3. Top Patriots officials were cleared.
The Wells Report notably cleared Patriots owner Robert Kraft and the entire coaching staff, including head coach Bill Belichick, of any wrongdoing. This is a key distinction from when Goodell fined Belichick $500,000, in addition to fining the Patriots $250,000 and taking away their 2008 1st round pick, for the Spygate scandal. With Spygate, Belichick admitted that he had “misinterpreted” NFL rules about videotaping. But with Deflategate, Belichick played no role. The Patriots might wonder why the team’s penalty is higher this time around.
4. No logical precedent for the punishment.
The Patriots have received one of the harshest team punishments in NFL history over an arguably minor offense. The closest analog might be the penalty assigned to the New Orleans Saints in 2012 over the Bountygate scandal. Goodell docked the Saints two 2nd round picks, fined the team $500,000 and suspended their general manager, coach and four players. By comparison the Patriots penalty—a 1st round and 4th round picks, $1 million fine and a four-game suspension for one player (albeit a superstar player)—might seem less significant. But remember Deflategate was about slightly underinflated footballs whereas Bountygate was about a far more serious matter: players being paid to injure other players.
The Patriots may have expected a penalty along the lines of that recently received by the Atlanta Falcons, In March, the NFL took away the Falcons 5th round pick in the 2016 draft and fined the team $350,000 for violating a game rule on crowd noise. During the 2013 and '14 seasons, a team employee used an audio device to artificially pump in crowd noise during home games. This noise, like an underinflated football, arguably gave the Falcons a competitive advantage over their competitors.
While higher-ranking Falcons officials were cleared of any involvement—just like Patriots officials were cleared in the Wells Report—the Falcons’ president, Rich McKay, was nonetheless suspended from his position on the NFL’s competition committee. The NFL reasoned that McKay, as team president, bears ultimate responsibility for decisions by his staff. Kraft may have expected a similar penalty scheme for his team.
5. Unwarranted to consider Spygate in Deflategate punishment—it amounts to double punishment for Spygate.
In his letter to the Patriots explaining the NFL’s punishment, league executive vice president Troy Vincent cited Spygate as a key factor. Vincent noted that “prior violation of competitive rules” is a factor under league rules in determining punishments. Kraft, however, could assert that Spygate is not only unrelated in any way to Deflategate, but the underlying misconduct in Spygate was not repeated in Deflategate. Spygate concerned taping by Patriots video assistants of opposing teams’ defensive coaches. This obviously did not occur in Deflategate, and the individuals directly responsible for Spygate were not involved in Deflategate. To increase the punishment in Deflategate due to Spygate could be construed as double punishment for Spygate.
6. Lack of support for a $1 million fine.
While Kraft probably cares the least about the $1 million fine among the penalties imposed by the NFL, it’s not clear how the NFL determined the number. The NFL constitution stipulates the highest penalty assignable to a team is $500,000.
Despite credible grounds for the Patriots to challenge league’s punishment as arbitrary, the NFL has its own arguments to validate the punishment:
1. Per NFL constitution, team punishments are “final, conclusive and unappealable.”
As noted earlier, the Patriots are a franchise in a league and are contractually bound to follow the NFL’s constitution and other legal documents. If Kraft asks Goodell to reconsider the team’s punishment and Goodell doesn’t change it, the punishment will be final.
2. Per NFL Constitution, the NFL is authorized to punish Patriots as the league sees fit.
Article 8.13 of the NFL’s Constitution makes clear the league is not limited to levying a $25,000 fine on the Patriots. The NFL can fine teams and take away draft picks if a team violates rules that “affect the competitive aspects of the game.” There are no stated limitations on what types of draft picks, or how many draft picks, can be taken away from a team. The NFL has added grounds to punish the Patriots due to Vincent’s assertion that Patriots employees, including Brady, were uncooperative and “not fully candid.”
3. Per NFL Integrity of the Game Policy, Spygate can be considered.
As discussed above, the NFL has imposed a harsher penalty on the Patriots in part because the league considers the team a repeat offender. The league’s Integrity of the Game Policy permits “prior violations” to be considered in determining a punishment. While the facts and type of wrongdoing in Spygate may seem dissimilar from issues presented by Deflategate, the NFL is likely on solid grounds to consider Spygate.
Argument that evidence is biased and incomplete
In an appeal, Brady’s attorneys would wage a massive, line-by-line attack on the Wells Report. Brady’s attorneys would take aim at the NFL’s assertion that the Report was conducted independently of the NFL. The attorneys would also take issue with comments by Wells, who has been paid by the NFL to investigate other controversies, during a media call on Tuesday. Wells insisted he was independent. As Brady will frame it, the Report overseen by Wells reflects a study commissioned by the NFL and conducted by attorneys who had an attorney-client relationship with the NFL. It is not a document written by a judge or some other neutral party.
Moreover, Brady’s attorneys would highlight that Wells faced the same structural limitations found in any internal investigation. He had no subpoena power (meaning he could not get a court order to compel witness participation or disclosure of evidence) and witnesses did not speak with him under oath (meaning no threat of perjury for lying).
These limitations do not mean the Wells Report is inaccurate or unfair, but they provide an important contextual point. This is particularly true given uncertainties about evidence and suspicions of NFL bias in the Deflategate controversy.
Pro Football Weekly’s Mike Florio, for instance, noticed that Wells seemed to disregard the recollection of referee Walt Anderson as to which of two pressure gauges Anderson used to measure the Patriots footballs. Not only does Anderson’s recollection support the Patriots’ account, it implies that NFL procedures for ball measurements may not lead to scientifically reliable measurements. Put another way, the NFL could deserve blame in the Deflategate controversy due to questionable techniques for measuring air pressure. Statements by Anderson do not necessarily absolve the Patriots of wrongdoing. Yet if a court were reviewing the evidence against the Patriots, Anderson would be a crucial defense witness. In an internal probe, in contrast, Anderson’s recollection can be minimized and obscured.
As another illustration of possible flaws in the Wells Report, consider allegations by Brady’s agent, Donald Yee. Yee contends the Report excludes most of Brady’s statements to Wells. If this proves true—and watch for Yee to publish his notes during an appeal—Brady can more credibly portray the Report as suffering from what’s sometimes called “confirmation bias”: amplifying information that supports a preconceived conclusion and dismissing or discounting information that rebuts the conclusion.
Brady might also provide testimony that gives context to Brady’s statements and text messages indicating that he cares about the way a football feels. For Brady, one approach might be to get sworn statements from other NFL quarterbacks, be they active or retired, where the QBs express they have the same interest as Brady in the way a football feels. The QBs would further maintain that interest in a way a football feels should not be assumed to mean the QBs want a football deflated or otherwise altered.
The Patriots can raise similar arguments as Brady about the evidence. They can argue the evidence is incomplete and reflects bias and refer to the same concerns expressed above. In addition to what is mentioned above, the Patriots might also contend that the Colts set up the Patriots to be caught. The Patriots could also raise suspicions that NFL vice president of operations Mike Kesil, who previously worked for the Jets, might be biased. In an exclusive SI.com report, Greg Bedard quotes a Patriots source who says Kensil told a Patriots employee at halftime of the AFC Championship Game, “We weighed the balls. You are in big f—ing trouble.”
The problem for the Patriots is that Goodell likely would not be receptive to these points. And there is no way for the Patriots to compel Goodell to conduct a self-audit that looks into possible incompleteness or bias.
Options if internal appeals fail
If Brady’s appeal is unsuccessful, he could consider suing the NFL. The most likely claims would be for defamation and for violations of federal labor and arbitration laws.
1. Defamation claim
In a defamation lawsuit, Brady would sue Goodell and executive vice president Troy Vincent and insist the league’s statements about him are untrue and harmful to his reputation. Brady might also sue Wells and his law firm raising the same argument. Brady could offer evidence from sports business experts that his ability to secure endorsement income has been irreversibly harmed due to NFL statements.
Brady would face steep odds in a defamation lawsuit. He’s clearly a public figure, which is significant under defamation law because public figures also must prove false statements were made with “actual malice.” This would require Brady to show that the NFL not only is wrong about the facts but has intentionally or knowingly lied about Brady. Jonathan Vilma filed a defamation suit in the aftermath of Bountygate and while it didn’t prevail, it helped him get his suspension overturned.
If Brady sues the NFL for defamation, the league will argue—as it did with Vilma—that the claim is preempted by terms contained in the collective bargaining agreement and Brady’s contact. Essentially, the league would argue that Brady has contractually agreed not to sue the NFL.
Even if Brady’s lawsuit wasn’t dismissed, he might encounter risks in pretrial discovery. He would be required to answer questions posed by NFL attorneys while under oath. Brady would also be compelled to share his phone and other materials requested by NFL attorneys.
2. Federal labor and arbitration claims
It is also possible that Brady could seek review by the National Labor Relations Board or a federal court to review how the NFL resolves his appeal. Adrian Peterson, with assistance by the NFLPA, pursued this tactic for purposes of being reinstated and it worked. Brady would likely cite two federal laws, the Labor Management Relations Act and the Federal Arbitration Act, and demand that the suspension be vacated. Brady would claim the suspension violates basic notions of fundamental fairness and consistency. Brady would raise specific points referenced above, including that there is no precedent for a player facing a four-game suspension for the type of infractions at issue. If Goodell selects a former NFL employee to preside over Brady’s appeal—as Goodell did with Peterson’s appeal—it would help Brady argue that he did not receive a fair shake.
While Brady’s argument could mimic Peterson’s argument to some extent, Peterson’s case was likely more persuasive. The reason why is that the NFL appeared to have punished Peterson retroactively, applying a more scrutinizing rule to Peterson’s misconduct which occurred when a previous and more lenient NFL rule was in place. Brady would not have such an argument at his disposal.
As discussed above, the Patriots can only request that Goodell reconsiders. Assuming the Patriots decline to adopt that approach or it fails, Kraft might consider other recourses:
1. Accept the punishment but try to force Goodell out.
Published reports indicate that Goodell’s contract as commissioner runs through March 2019. It will thus be a while before Kraft could attempt to persuade other owners to replace Goodell.
In the meantime, Kraft could try to convince other owners to issue a “vote of no confidence,” a ceremonial but significant step whereby owners tell Goodell they no longer believe he is up to the job. Goodell would not be fired—the record of commissioners being fired in major sports leagues is virtually non-existent—but he would be expected to step down. The last time the commissioner of a major sports league received a vote of no confidence was in 1992, when baseball owners, in an 18 to 9 vote, expressed to Fay Vincent that they wanted a new commissioner. Vincent then stepped down.
While Kraft may want Goodell out, it’s not clear that other owners feel similarly. Despite numerous controversies during Goodell’s tenure, the league has flourished financially under his watch. Owners likely would be hesitant to “rock the boat.” Owners might also worry about retribution: if some owners are perceived as supporting Goodell’s ouster, they better succeed in ousting him or Goodell might remember their attempt.
2. Use political influence to spawn a Congressional investigation into the NFL’s Deflategate investigation.
Kraft is an icon in New England. It has been that way since 1994, when Kraft bought the Patriots from James Busch Orthwein and prevented the team from being relocated to St. Louis. Four Super Bowl rings later, Kraft has obtained legendary status in New England.
Along the way, Kraft has made political connections and is considered quite influential on Capitol Hill. It stands to reason that Kraft could encourage members of Congress with whom he is close to launch an investigation into the NFL’s handling of Deflategate. A Congressional investigation into Deflategate isn’t as far-fetched as it might sound. Last September, U.S. Senators Kirsten Gillibrand and Jay Rockefeller, among others, suggested that Congress should investigate the NFL’s handling of the Ray Rice matter and the broader issue of domestic violence committed by players. Congress has held hearings related to the NFL. They have been on the concussion crisis in football, performance-enhancing drugs, and antitrust and tax exemptions for the NFL and other leagues.
During Congressional testimony, Goodell and other NFL officials would be compelled to speak under oath about the Deflategate investigation—and risk potential perjury charges if they knowingly lie. Given suspicions by the Patriots that the NFL acted unfairly, Kraft might welcome watching Goodell, Vincent and Wells testify.
A Congressional hearing is a double-edged sword. Kraft and Brady would surely be called to testify as well. They would also be expected, if not required by subpoena, to supply evidence—including Brady’s phone. Kraft calling for a Congressional hearing also runs the risk of infuriating other owners, who do not want Congress investigating league practices.
3. The nuclear option: Sue Goodell and the NFL.
If Kraft determines that he has exhausted any internal appeals, he could attempt to take the matter to court. If a lawsuit advanced past a motion to dismiss, Kraft could force Goodell, Vincent and others to testify under oath. The same, though, would be true for Kraft, Brady and Bill Belichick, among other Patriots employees.
There are different types of claims Kraft could bring. Among them:
i. Federal arbitration claim—Kraft could ask a federal court to review Goodell’s decision-making on Deflategate. The key for Kraft would be to argue that Goodell, as the ultimate arbitrator on league matters, has acted arbitrarily and capriciously. This would be a difficult standard for Kraft to show, but it is the customary standard used by courts in reviewing the decisions of private business associations like the NFL. Kraft would stress that Goodell failed to provide him and the Patriots a fair opportunity to make a case. Kraft would also contend that the NFL has grossly misinterpreted its own rules in imposing such a hefty and unprecedented penalty. Kraft would essentially claim that the penalty makes no sense and is thus arbitrary.
ii. Federal antitrust claim—Kraft could file an antitrust lawsuit against the NFL, claiming that the league and its teams—including the Colts, which may have played a decisive role in sharing implicating evidence—have conspired in an anticompetitive way to harm the Patriots and the team’s franchise value. With some success, the late Al Davis used antitrust law to take on the NFL in the 1980s during a legal dispute over where the Raiders play. More recently and without success, former Los Angeles Clippers owner Donald Sterling attempted to use antitrust law to take on the NBA and Adam Silver. One advantage to an antitrust law would be the possibility of treble damages.
iii. Defamation claim—Kraft could sue Goodell and Vincent, and contend that statements made by the NFL about the Patriots involvement in Deflategate are untrue and damaging to his reputation. As a public figure, Kraft would have the added burden of showing Goodell and Vincent lied with “actual malice,” which means they lied intentionally or knowingly.
iv. Petition for a restraining order.
Kraft could also petition a judge to issue a temporary restraining order blocking the NFL from carrying out the penalty. He would have to show irreparable harm, meaning harm that monetary damages couldn’t cure. This would be very difficult to show.
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To be clear, none of these claims by Kraft would likely prevail. The NFL Constitution makes clear that ownership grievances are to be resolved internally and kept out of court. The NFL would petition any court in which Kraft sues to immediately dismiss the lawsuit on grounds that Kraft, like all NFL owners, contractually agreed to never sue the NFL and other owners. The NFL would probably succeed in making such an argument.
Also, not only did Kraft initially say he would accept the Deflategate punishment, but Kraft’s record and personality suggest it is extremely unlikely he would sue the NFL—an association in which he’s been an influential member for the last 21 years. Kraft suing the NFL would mean he’d be suing the 31 other ownership groups, some of whom include his close friends.
Do not expect Kraft to file a legal action, but it is an option. No matter how Kraft responds to the punishment, his team’s legal rights will be very different from those of Brady in his appeal.
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.