With Deflategate Passed to Federal Court, Who Gets Flagged?

Last week, I was contacted by two local television stations and asked to provide on-air analysis regarding recent developments in the Tom Brady-Deflategate legal proceedings. My first thoughts were, "Why are you asking me? I'm a Criminal Defense Attorney, not a Labor Lawyer?" My second thoughts were, "Wait a second, why not? I did, after-all get a solid B without any heavy-lifting in the one labor law class I took in law school. How hard can it be?" The answer to the last question is, in actuality, very hard, given the variables, unknown X factors and evidence and testimony we have yet to see. Two things I do know, though. The first is anyone who says they already know what the outcome from the lawsuit now pending in US District Court for the Southern District of NY titled National Football League Management Council v. National Football League Players Association, No. 15cv5916 (RMB) (or what Judge Berman is ultimately going to do) is immediately suspect. The second is anyone who says the process begins with the presumption of validity regarding the Arbitrator's ruling (i.e. Commissioner Roger Goodell upholding Brady's four game suspension) definitely has credibility.

Scheduling conflicts prevented me from accepting either television invitation, but what [I think] I remember from that long-ago law school class is that the three driving principals in Labor Law are: leverage, pressure, and negotiation. (Okay, arbitration is the fourth, but since this is my blog, I'm entitled to ignore it!) In my opinion, these concepts are what got us to where we are today in "Deflategate" and what will continue to dictate the going-forward process—at least for the short term. Let me explain.

Heading into last week's upholding of Brady's four game suspension, I believe (as apparently do others) there were five strong factors weighing in the New England Patriots star quarterback's favor: 1.) deflating footballs, if done deliberately, is an equipment violation and the stated penalty for the same is a fine; 2.) the expressed standard of proof of "more probably than not generally aware" (with emphasis on generally aware) that was used in the investigation is pure gobbeldy-gook in terms of culpability, liability, and responsibility; 3.) the penalty for failing to cooperate in an in-house NFL investigation has never been game(s) suspension (nor was there any notice of such); 4.) Tom Brady was under no obligation whatsoever under these circumstances to maintain, preserve, or turn over his personal cell phone; and 5.) Greg Hardy, Greg Hardy, Greg Hardy.

At the same time, I believe the NFL had four strong factors favoring their position: 1.) the agreed, indeed accepted, and collectively bargained for standard of proof is the same "more probable than not” (preponderance standard) that is used in all civil proceedings; 2.) again by agreement (and bargained for), the NFL Commissioner may serve as arbiter and also hear any appeal of the same; 3.) text messages between locker room attendants Jim McNally and John Jastremski referencing "Tom" on the surface appear to suggest some level of interaction with Brady regarding ball pressure; and 4.) the so-called destruction of Brady's cell phone while the investigation was ongoing just plain looks bad—okay, even as a Pats fan, I have to say it looks terrible.

So you're probably saying by now, "That's all fine, Brad, but tell us something we don't already know!" Fair enough; here's where what I think I recall from my labor law class comes into play. I believe going into the appeal process Tom Brady and the NFLPA (NFL Players Association) believed that given the merits and equities of their respective positions, Brady's side had the "leverage." That's why, if reporting was accurate, Brady purportedly said the only sanction he would agree to would be monetary. I further believe that recognizing the Brady-side might be correct in their assessments, the Commissioner decided to increase the "pressure." That's why he a.) upheld, without change, Brady's original four game suspension; b.) immediately (before Team Brady could) filed suit in what he believed would be the more friendly local U.S. District Court in Manhattan (in order to create "home field advantage" over the less NFL-friendly Players Association preference of U.S. District Court in Minneapolis); and c.) went out of his way to tarnish Tom Brady's unblemished reputation by publicly and forcefully stating Brady destroyed evidence (disingenuously suggesting a violation of some undefined order or prohibition), failed to cooperate with investigators, and likely participated in deflating game balls.

The net effect of all that was to try to shift both public perception and the balance of power ("pressure and leverage") to the Commissioner; if reaction and commentary in the immediate aftermath of the Commissioner's remarks is any gauge, that's precisely what happened last week. It's also why Brady and the NFLPA moved quickly to try to increase their leverage, especially in the wake of Judge Berman's admonitions about trying to reach settlement. First, Brady attempted to regain good-guy status by claiming he wanted a quick ruling and had no intention of dragging this out. Second (yesterday), the NFLPA released in its entirety the transcript of Brady's clear and unequivocal denial of any wrongdoing, in general, and his specific denial of any involvement with or knowledge of adjusting air-pressure in game footballs. Third, it's why in addition to Brady's sworn testimony, the NFL PA's 457 page disclosures yesterday included ambiguity as to whether Brady's telephone was, in fact, deliberately "destroyed" and/or if he ever instructed such; excerpts of lead investigator Ted Wells' contradictory (to Goodell's own findings and conclusions) statements regarding Brady's actual cooperation; references to the $2.5-$3M fee paid by the NFL to Wells' law firm (inferring both bias and a "purchased" result); and Wells' own apparent admission regarding ignorance of the so-called "Ideal Gas Law" and the impact it might have had on game time ball pressure. In my opinion, the cumulative impact of this is to return the upper-hand leverage and overall balance of power on the "eve" of next week's status conference back to Brady and the NFLPA.

What do I think where we are today means in terms of outcome and conclusion? Well, again, I can only guess. While I personally feel the release of Brady's unequivocal sworn denials about deflating footballs and less than black and white testimony about destruction/disposal of his cell phone might provide a strong impetus for him to drag out the process and fight to the end, I believe a settlement is likely, particularly in view of Judge Berman's clear direction to both parties he wants it done. Because I believe Brady and the NFLPA have recovered leverage in the case, I believe the settlement will be a one game suspension, with Brady expressly having to neither admit nor deny any wrongdoing; which is really nothing given that his strong and unequivocal denials are already public. If I am right, why should he accept a one game suspension? Because it resolves the issue quickly and removes any doubt as to outcome; allows him to take the high road and say he is selflessly doing it in the "best interests of the game and the league;" does nothing to undo his denials—and creates a situation where a year from now we will all be left to wonder what on earth any of this was about; and it helps restore the overall "good guy/golden boy" image that is clearly very important to him. And why should Commissioner Goodell accept a three game reduction in penalty? Because he knows Brady and the NFLPA have regained the leverage, and that a prolonged fight will only result in more damaging information coming out (including Greg Hardy, Greg Hardy, Greg Hardy, and Ray Rice and Adrian Peterson, and Brett Favre). By settling at the maximum Brady will be likely to accept, he too can say he "acted in the best interests of the NFL" while simultaneously being able to show his 31 other employers (team owners) he was willing to stand up to the powerful [and perceived scofflaw] Patriots, until pressured to stand-down by a federal judge, while offering a much needed "olive branch" to his 32nd employer, influential owner and much-needed ally, Robert Kraft.

One to two weeks time will ultimately "tell" not only if my guess-work here is right or wrong, but also if that long-ago "Gentleman's B" in Labor Law might easily (with a bit more effort) have been an A, or in actuality, was closer to a C. It's both the blessing and curse of blogging that one way or another, we will all eventually know the ultimate answer.