Friday, May 15, 2015

Deflategate - the legal ramifications of Tom Brady's suspension

By buddy Rick is a lawyer (admittedly not a labor lawyer as he asks me to point out).  But he's looked at the recent suspension of Tom Brady for 4 games by the NFL commissioner (as a punishment for under-inflated footballs) and emails me his analysis.  With his permission, I'm posting it here.

Google Jeffery Kessler.  I have forgotten half of the cases he has slammed the NFL on.  I do not believe he has ever lost.  I now think it is never even getting to the “merits” of the case.  Kessler will have it thrown out based solely on the fact that they based the suspension on his failure to “cooperate” by giving them his phone.  Unlike any of all of the talking head analysts on tv and radio, I downloaded and read the entire NFLPA Collective Bargaining Agreement.  There are several sections where the League collectively bargained for the ability to do discovery as part of a dispute.  See, for example, Article XI entitled “Non-Injury Grievance” where the rules for discovery conducted by each side are clearly laid out.  An example of this type of dispute would be one involving the terms/requirements in a player’s contract.  If the player disputes the league’s/teams interpretation, it brings an arbitration/appeal under this Article and per the agreement that has been collectively bargained for, the member of the union must submit to discovery, including one would assume, discovery of his electronic devices.  However, the appeal of a suspension is governed by Article XI entitled “Commissioner Discipline.”  It does not contain any agreement by the players to be subject to discovery.  Put conversely, it does not empower the League to seek discovery of electronic devices.  Of course, the League can always ask as Wells did, but members of the union (i.e. Brady and Gostkowski as opposed to everyone employed by the Pats) do not have to give them anything.  The League expressly sanctioned Brady for his failure to do something the is not required under the CBA and for which they have never collectively bargained.  Kessler is going to slam the NFL.  So much so that I go back to wondering if this wasn’t done by Goodell intentionally.  To everyone else, he appears to be hardassing the Pat’s and Brady, but when the dust settles, his buddy Kraft is at least partially placated in the hopes it will blow over.

Brady should win [if he sues].  He has to go through the charade/farce of an “appeal” to the Commissioner.  After that he will go to the NLRB, I would imagine.  He as a dispute under the NFLPA collective bargaining agreement.  If he really wants to get nasty, he may be contemplating an anti-trust suit.  Kessler cut his teeth on anti-trust.  That prospect may scare the crap out of the League.  And I still don’t think the merits of the case will come in.  The argument would be as follows: The only reason Brady is in the position he is is because the NFL is an illegal monopoly.  I.e. it is acting in an anti-competitive manner.  Since the League is an illegal monopoly, it is a legal nullity.  If the league is deemed a monopoly, then there is no Office of the Commissioner.  No Office of the Commissioner, no power to suspend.  No power to suspend, no Brady punishment . . .

And don’t forget, it was Kessler that won the anti-trust suit that got the NFLPA free agency.

Kraft, on the other hand, agreed to the League constitution and franchise agreements.  He has no right of appeal and a very tough case.
It's a very interesting question as to whether Brady could sue the NFL Commissioner for damaging his reputation in this episode.  I think that's quite unlikely to happen - indeed, I expect that after all the big headlines die out there will be a very quiet resolution of this that revokes the suspension and substitutes some wrist slap as a fig leaf for the NFL.  By the time the season starts this will all have blown over.

Otherwise the NFL would have some very interesting information come out during the discovery process in the lawsuits, information that would almost certainly be very damaging to the Commissioner's office.


burt said...

There's another question that has keeps going unasked 'cuz it's embarrassing and proves that the charges of "cheating" are spurious:

Since either team (Colts, Pats) used their own footballs when they were "in control" (playing offense), how did the air pressure in the Pats' footballs affect the poor play of the Colts in the AFC championship game?

And if the Pats' footballs were underinflated in the first half and then checked/reinflated for the second half, someone needs to explain why the Colts were blanked 28-0 in the second half of the game. Did that extra pound of pressure in the Pats' footballs cause the Colts to play even more poorly in the second half?

Jester said...

Well, its not a issue of if the balls affected the final score to the blanketing that it did. Its the fact that the balls were not up to standard. Cheating is cheating even if it does not affect the game itself. Is this an issue that just happened this one time? Were much closer games changed by this happening? I find it to be repugnant in a game that is "measured by inches" that someone would mess with the football. I'm very much against performance enhancing drugs. Drugs that may help players recover form injury quicker, or weed I could generally care less about. If something can change the competitive balance of the game to me that is a big problem. It does not matter if someone gets an edge with drugs, tampered footballs, stolen information, or anything else it is still cheating. If the fall back is that the game was such a blow out that the football pressure did not cause the loss then you're missing the point of it being a even playing field. Sometimes teams just get their ass whipped. What if this game was decided by a hand full of points instead of this, would that then be suddenly a problem? If that is the case then yes you have a double standard. Because if this is done to be subtle and perhaps give you an advantage of it being a close game how is that more cheating than if you win 99 to 0? It does not matter if it is messing with footballs, salary caps (Hey see the Broncos Superbowl Win run, they got docked draft picks for breaking salary cap rules for example) talking to free agents or what have you. I don't buy the aspect of everyone does it either. If everyone did the rules would state they can do this to the football, that to the salary cap or this to their scouting of teams.

Now while I think the punishment is deserved I do also think it will mostly be avoided due to the technical aspects of the case. Same as many other cases.

What I do see and am puzzled as to why this has not happened is that the NFL will supply all footballs for all games and be in complete control of the balls at all times so that this could not happen again or even be given the whiff of a possibility of it happening. Much like MLB and their baseballs.

2cents said...
This comment has been removed by the author.
2cents said...

Actually, if you use the best recollection by Walt Anderson of the pressure guage he used at halftime to test the pressure of the game balls (and not the one Well's subsequently badgered/led him to), then it is not "a fact that the balls were not up to standard." In fact, they were exactly where they should have been given the ideal gas law, and even Wells and his hired gun testing lab admit it. So I guess we take Walt Anderson's best recollection on every other point, except that one, huh?

Brian said...

Still wondering how the line judge who handles the footballs on every play, was unable to tell the difference, until it was called to his attention by a Colts player.

Jester said...

Well the NFL got it's off season drama regardless of the outcome of this case.
Sadly we apparently can't see if this was an isolated incident but as reported there was a history of breaking the rules in place. As a foot ball fan and yes, I generally have been a Patriots fan over many other teams I'm saddened that this would come about, much like if an athelete that I respected (not looked up to mind you but respected) tested positive for drugs. I would be curious to find out if the same gauges were used on the colt's footballs at similar times. If that was the case then there was some tampering done. If not then things are up to more speculation. I still stand by this thought that the NFL will now just have one football that it will pass out until a score is made or a football is considered unserviceable all the while under the trust of the NFL officials.

Old 1811 said...

I find it hilarious that everybody is pretending that this has nothing to do with gambling.
More money changes hands, legally and illegally, on Super Bowl Sunday than on any other day of the year.
I remember one Super Bowl (you can look it up) where the favored team scored a touchdown in the final two minutes of play, putting them 12 up. I knew that the line on the game had them winning by 13-1/2. I thought, "This is interesting. They're gonna kick the extra point and win the game, but lose the spread." What did they do? A 2-point conversion. It was probably the first 2-point conversion in the history of the Super Bowl and the only reason to try it was to beat the spread.
Anyone who thinks football is legit is an idiot.