An Award Obtained Without the Requisites of Fairness or Due Process
Had someone suggested on Monday that the Brady suspension might be reduced, I would have been disappointed but not surprised. But knowing what we now know, he should feel fortunate that the suspension wasn’t lengthened. I would have suspended Brady for the season.
--William Rhoden
New York Times
July 29, 2015
William Rhoden of the New York Times has been writing incisively about the Deflategate case for several months, and now that a Federal judge has ruled that every word that Rhoden has written for the last eight months is total and complete nonsense, Rhoden announces that the real issue is "sportsmanship". Well, not to be immodest, but I’ve been right about everything connected to this case all summer, and, since this is such a rare event, let’s talk about this in more specifics than are being covered, it seems to me, in most other accounts.
On May 6 the Wells report was made public, the Wells report being the NFL’s hired professional investigation into the case, conducted by the law firm of Theodore V. Wells and his associates. I have no problem with the Wells report; to the best of my knowledge it was a serious and fair effort to understand what had happened (although Judge Berman did have some problems with it, which we’ll get to later.) The Wells report concluded that "it is more probable than not that Brady was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls."
Responding to a question in "Hey, Bill", asking whether Brady would be suspended by the NFL based on this report, I replied that I didn’t see how he could possibly be suspended, based on that report. You cannot punish someone, as a rule, because it is more probable than not that he was generally aware of inappropriate conduct. Let us say, to put this in a context both relatable and common, let us say that your co-worker is stealing things from the office, and that your boss believes that it is more probable than not that you were at least generally aware of this. Can your boss legally fire you because he believes it is more probable than not that you were generally aware of the thefts?
No, he can’t—not if you have a good lawyer, not if you have a decent union, not if you live in the modern world in which employers have a legal responsibility to deal fairly with their employees. I took the words "more probable than not" and "generally aware" to be code words telling Goodell to back off. That’s an understatement; they were code words telling Goodell to back off. There is no other way to read them.
Wells, to his credit, was trying to let some of the air out of the controversy before it was placed on Goodell’s desk. Unfortunately, Roger Goodell doesn’t go for that subtlety nonsense. Another reader, identifying himself as "Pablo", took the NFL’s side in this dispute, and sought to edjacate me about the American legal system:
A lot of the uproar over the "more probable than not" standard is based in a widespread misunderstanding, or lack of familiarity, with the American legal system. As a previous poster pointed out, the "preponderance of the evidence" standard is the ordinary civil law standard, and the basis for the vast majority of legal actions in America. People get punished--yes, punished--all the time based on that standard. When the SEC fined an insider trader $93 million dollars, or when the FTC won $30 million in fines from a robocaller, or when OJ Simpson was ordered to pay $25 million dollars to his ex-wife's family, those were civil judgments based on the "more probable than not standard." We don't incarcerate people under that standard, but we certainly punish them, including barring them from conducting business or working in a profession. Nobody is putting Brady in jail here. There is no requirement of proof beyond a reasonable doubt when you're talking about a 4-game suspension.
--Pablo
This discussion wandered off into a debate about the meaning of the word "preponderance" and whether that had changed over time. . .an interesting enough discussion, in that we learned something from it, but let’s not retrace that.
I am inclined, of course, to make blanket statements in disputes of this nature, and judges are not generally inclined to make blanket statements. Judge Berman’s structured legal analysis of this problem is:
a) The investigative report says that "it is more probable than not that Brady was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls."
b) Commissioner Goodell’s report of July 28, resolving the arbitration hearing, concludes that "Mr. Brady knew about, approved of, consented to, and provided inducements and rewards in support of a scheme by which, with Mr. Jastremski’s support, Mr. McNally tampered with the game balls."
From (a) to (b) is a rather large step up. In order to take that large step up, there has to be some basis in fact or evidence—but in fact Goodell stated repeatedly that his actions were based on the Wells report, and that the Wells report was the factual basis for his actions. Goodell simply took a leap forward from the factual record.
Why? Berman doesn’t tell you, so I will. Because the NFL’s lawyer told him that you can’t suspend someone for a quarter of the season based on the conclusion that it is more probable than not that he was general aware of someone else’s misconduct. Goodell wanted to suspend Brady, but the evidentiary report didn’t support that, so he made up additional conclusions, and counted on his unassailable position as the arbitrator to sustain those made-up conclusions.
A judge does not like to overturn an arbitrator’s judgment, and there is in the law a strong presumption in favor of the arbitrator—who, in this case, was Goodell. Goodell had a right under the collective bargaining agreement to appoint himself as the arbitrator to review his previous decision. But when he became the arbitrator, he had a responsibility to act equally on behalf of all parties in the dispute. He did not do this.
Berman hammers Goodell on point after point after point after point, and I have mentioned two of them:
1) Goodell took a very large step forward in his interpretation of the evidence, with no factual basis, and
2) There was hardly even a pretense that, as an arbitrator, he was acting equally on behalf of all parties. Rather than acting equally on behalf of all parties, he ratcheted up the charges based on his own undocumented assumptions.
It is acknowledged by everyone that a suspension is a greater and heavier punishment than a fine, but at times Berman seems to be saying that the factual record would not have justified Goodell even had he fined Brady, let alone suspended him. His other blasts at Goodell include:
3) Goodell cannot make up industrial law as he goes along. As Berman stated it, "It is the ‘Law of the Shop’ to provide professional football players with advance notice of prohibited conduct and potential discipline." There is no trail anywhere suggesting that a player can be suspended for an equipment tampering violation. No player has ever been punished in a like manner for a like offense—and, in fact, there have been similar offenses committed in the past, with no punishment at all directed at the players who benefitted. In 2009, a New York Jets employee was caught using a sideline heater to warm up the football that would be used to a attempt a field goal, making the ball travel further. The Jets’ kicker was present and obviously aware of the activity, but no action was taken against him. The league’s Competitive Integrity Policy states that the fine for a first offense for equipment tampering is $5,512. But since Mr. Brady did not tamper with the equipment and there is no real evidence that he was even aware that it had been done, even that fine would be problematic in this situation.
A phrase in the NFL Game Operations Manual states that if the footballs are tampered with in this manner "the person responsible and, if appropriate, the head coach and other club personnel will be subject to discipline, including but not limited to, a fine of $25,000." However, the Game Operations Manual is not provided to players, is not subject to collective bargaining, and is not a basis for disciplinary action against players, even if that disciplinary action was within the range outlined in the directive.
4) League policy of which the players are informed states specifically that the punishment for a first offense of equipment tampering will be a fine.
5) That Brady benefitted from this transgression is a presumption unsupported by any evidence. In fact, Brady in the game in question completed 11 of 21 passes with the "illegal" balls, and 12 of 14 when the balls were re-inflated to meet the league standard. No evidence is in the record that Brady benefitted from the balls being deflated or that he expected to do so.
6) Goodell has stated in numerous places and times that Brady’s alleged misconduct is parallel to the use of steroids, but has offered no explanation for why or how they are similar, other than that he sees them as being similar. They are objectively not similar at all. Steroid use is prohibited by specific policies which were negotiated with the union. There is an extensive program of educating the players about the health risks of using steroids, an extensive program of warning the players that the use of those substances is prohibited, and there is a testing program to determine who violating the policy. There is an appeals process, there is a specified burden of proof, and there are discovery rules. This alleged offense doesn’t have any of that. In the words of the ruling, "The Award offers no scientific, empirical, or historical evidence of any comparability between Mr. Brady’s alleged offense and steroid use."
7) For that matter, what does it even mean to say that Brady was "generally aware" of the misconduct? In the exact words of the court (oral argument), "I am not sure I understand what in the world that means, that phrase. So it says, at least generally aware of the inappropriate activities of Mr. McNally and Jastremski involving the release of air from the Patriot game balls. So I don’t know what that is. You know, did he [Brady] know that McNally took the balls unaccompanied into the bathroom? Did he know that in the bathroom, if it in fact happened, McNally deflated the balls? Did he know that McNally then went to the field with the balls?"
Judge Berman’s point here is that the conduct alleged is of such a vague nature that it would be very difficult to see how the NFL could have complied with its obligation to notify the player what the penalties would be for such an offense.
8) Goodell justifies his action against Brady by citing the Game Day Operations Manual. But the Game Day Operations Manual does not normally apply to players, is not a part of the collective bargaining process, and has never been provided to the players. It is a guidebook sent to the NFL teams, regulating the conduct of the teams.
9) Goodell arbitrarily denied Brady the right to question witnesses, the right to see evidence, and the right to see the records of previous related cases, while allowing those opposed to him access to the same resources. In Berman’s summary this is a long series of different offenses, but for brevity we will list it as two (9 and 10).
10) Goodell made judgments about what persons involved in the investigation would or could testify to, and denied Brady the opportunity to question these witnesses based on his own improper evaluation of the relevance of their testimony.
11) In numerous times and places, Goodell states that some portion of Brady’s punishment is for obstructing the league investigation by destroying his cell phone, although he never says what portion. However, while there have been many documented incidents of players interfering with misconduct investigations in the past, no player has even been disciplined for this in the past, and there has been no warning or notice that players will be disciplined for this in the future. Former Commissioner Paul Tagliabue, in a recent and related case, states very specifically that no player has ever previously been disciplined for refusing to cooperate with an investigation.
The letter notifying Brady of his suspension, which is called the Vincent letter, states that the Wells report "documents your failure to cooperate fully and candidly with the investigation, including by refusing to produce any relevant evidence (emails, texts, etc.) despite being offered extraordinary safeguards by the investigation to protect unrelated personal information."
This is really the key to understanding this mess. Unquestionably, Goodell attempted to go far, far, far beyond the punishments for this offense which are outlined by league policies. Why did he do this?
For two reasons. First, in the arbitrary and random nature of publicity, the deflated footballs received an absolutely fantastic amount of immediate attention. Goodell attempted to create a punishment which was in keeping with the publicity given to the offense, rather than with the league rules governing the situation.
And second, when Brady destroyed his cell phone, he pissed Goodell off.
In Goodell’s mind, and in the mind of those like New York Times reporter William Rhoden, there is no plausible explanation for this, other than that the cell phone contained damaging information related to this. But in reality, it is very easy to imagine, oh, I don’t know, ten billion extremely plausible alternative explanations for this. Cell phones typically contain a wide variety of extremely personal information.
Tom Brady’s wife is a supermodel. Let us suppose that the cell phone contained video of private intimate interactions between Brady and Giselle. What do think Giselle is going to say, when she hears he has been ordered to turn over that cell phone? I’ll tell you exactly what she is going to say: Tom, we are not turning over that cell phone, and I don’t give a shit who is going to see it and who isn’t. You destroy that cell phone right now.
Second scenario: What if the cell phone contained some record of a relationship between Tom Brady and some other woman?
What if the cell phone contained messages from a friend or former teammate, telling personal and possibly damaging information about a relationship in HIS life, the friend or former teammates?
What if it contained medical information, either about Brady or about some family member, that that family member does not wish to share with the masses?
Yeah, it is fine for the NFL to guarantee Brady that no one else will ever see this data, and there is no possible way it could ever become public, but we all know of a hundred situations in which somebody was given a promise exactly like that, and then the private data somehow became public. Brady and his wife are both very famous people. Some people make quite extraordinary efforts to invade their privacy. Sometimes those efforts are successful.
It is entirely reasonable to believe that Brady destroyed his cell phone for reasons having nothing to do with this case. But whether he did or not, Goodell cannot make up the rules as he goes along. No player has ever been disciplined by the NFL for failing to cooperate with an investigation; therefore, within the collective bargaining arrangement, no player can be disciplined for failing to cooperate with an investigation unless or until the players are placed on notice that this will be done.
Goodell tries to use the magic words "conduct detrimental to the league" to justify overthrowing precedent, and making an example of Brady. He skipped the necessary step of proving that Brady actually did something he shouldn’t have done. In the words of the Berman ruling, "the deference due an arbitrator does not extend so far as to require a district court to countenance. . .an award obtained without the requisites of fairness or due process."