NFL Clobbers Patriots and Brady, Dubiously; Appeal to Follow

Today the NFL came down hard on the New England Patriots, taking away two draft choices (including next year’s first), fining the club $1 million and suspending quarterback Tom Brady for four games. This action was taken on the basis of the Wells report, which, as I wrote here, is surprisingly weak, especially as to Brady.

The report concludes that Brady “more likely than not” was “at least generally aware” of the activities of two low-level Patriots who may have deflated footballs (the report doesn’t prove with any certainty that they did so). Support for this claim is entirely circumstantial, and in some instances–e.g., the fact that Brady rarely or never texted the employee who prepared balls for game play before the deflation story broke, but called and texted him several times thereafter–the circumstantial evidence points more toward innocence than toward guilt. The report surmises that the ball guys probably wouldn’t have tampered with the football without the quarterback’s knowledge, but that is pure speculation. One could just as plausibly speculate that the quarterback wouldn’t countenance tampering with game balls without the knowledge of his offensive coordinator or head coach, and yet the report exonerates the Patriots’ coaching staff.

I think that what really drove the adverse finding, as to Brady, was his alleged failure to cooperate fully with the investigation. The Wells report states:

Similarly, although 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. Our inability to review contemporaneous communications and other documents in Brady’s possession and control related to the matters under review potentially limited the discovery of relevant evidence and was not helpful to the investigation.

So Brady met with the investigators–his agent says, for the better part of a day–and answered their questions, but declined to give them texts and emails from his telephone. The obvious question is, was he obliged to do so?

The NFL believes that he was. In fact, the league’s letter to Brady specifically relies on his refusal to give the investigators electronic data as a principal reason for his suspension:

With respect to your particular involvement, the report established that there is substantial and credible evidence to conclude you were at least generally aware of the actions of the Patriots’ employees involved in the deflation of the footballs and that it was unlikely that their actions were done without your knowledge. Moreover, the report documents your failure to cooperate fully and candidly with the investigation, including by refusing to produce any relevant electronic evidence (emails, texts, etc.), despite being offered extraordinary safeguards by the investigators to protect unrelated personal information, and by providing testimony that the report concludes was not plausible and contradicted by other evidence.

I would submit that the evidence against Brady was so feeble that the league cannot justify his suspension except by relying heavily on his failure to turn over evidence from his cell phone. The league’s discipline was imposed pursuant to its Policy on Integrity of the Game & Enforcement of Competitive Rules. That policy apparently says (I say apparently because I have not been able to locate the text of the policy, but the language that follows has been widely quoted on the internet):

Failure to cooperate in an investigation shall be considered conduct detrimental to the League and will subject the offending club and responsible individual(s) to appropriate discipline.

There are at least two issues here. First, what standing does the League’s Policy on Integrity of the Game have under its collective bargaining agreement with the players’ union? The Policy is not mentioned anywhere in that 300-page document, and, while the CBA imposes a duty to cooperate on players in various contexts, it does not mention such a duty as to the league’s investigations arising under the Policy on Integrity of the Game. For legal purposes, I believe that the CBA will be the controlling document.

Second, what degree of cooperation is required under the league’s Policy and, perhaps, the CBA? Certainly not infinite cooperation; the standard presumably would be reasonable cooperation. Here, Brady spent several hours answering all questions posed by the investigators. Does the league have a right to demand, in addition, texts and email messages, and suspend a player if he prefers not to comply? It is by no means obvious from either the Policy or the CBA that the league has such a right.

Pat Reusse is a smart, veteran sports writer in the Twin Cities. On the electronic version of the Minneapolis Star Tribune, he wrote a post titled Brady fighting righteous cause vs. NFL.

The NFL boot-lickers have come out in force in favor of Ted Wells’ claim that Tom Brady did not properly cooperate in his investigation of low-pressure footballs used by the Patriots in the first half of the AFC title game.

The issue was Brady’s unwillingness to turn over a personal cell phone and e-mails from a private account to Wells. The boot-lickers have joined the cry that Wells and the NFL have a full right to engage in such invasions of personal property in investigating the conduct of club employees and players. …

“If he doesn’t have anything to hide, why would he not turn over the texts and e-mails?” has been the din from the house organs and much of the anti-Patriots public.

Real simple: Privacy.

That’s why you don’t use a cell phone issued by an employer. That’s why you pay $100 a month – or in Brady’s case, presumably much more for security – for your own cell phone.

Other than a request from police in a criminal matter, or a subpoena, it’s no one’s gol-darn business what is on a private cell phone or e-mail account. Wells and the NFL don’t have subpoena power, so Brady was fully righteous in telling those parties to take a hike.

It is preposterous the NFL now can make the fascist-like leap that Brady can receive extra punishment for not providing Wells with private texts or e-mails.

Reusse also notes that tampering with footballs is covered in the NFL rules: it carries a fine of $25,000 or more. (I am not sure what rule this is or where it is found.)

Tom Brady’s agent has said that he will appeal the NFL’s suspension. The case will go to an arbitrator and ultimately, perhaps, to the courts. Don’t be surprised if Brady wins.