National Football League Commissioner Roger Goodell has, rather unsurprisingly, upheld the four game suspension that was issued against New England Patriots Quarterback, and Super Bowl MVP, Tom Brady in what has come to be known as the “Deflategate” scandal:
N.F.L. Commissioner Roger Goodell upheld the four-game suspension ofNew England Patriots quarterback Tom Brady, one of the league’s biggest stars, for his role in the deflation of footballs used in the A.F.C. Championship game in January.
The league said in a 20-page statement Tuesday that its decision was partly based on Brady’s ordering the destruction of potential evidence, a cellphone that he had used during the week of the game and afterward. The destruction of the phone, which occurred shortly before Brady met with the league-appointed investigator, was not revealed by Brady until his appeal hearing in June.
The investigator’s report, commissioned by the league and released on May 11, found “substantial and credible evidence” that Brady was “at least generally aware” that two Patriots employees tampered with game balls, prompting the N.F.L. to suspend him for four regular-season games without pay.
A deflated football is said to be easier to grip, especially in the cold and wet conditions that the Patriots faced at home against the Indianapolis Colts on Jan. 18.
In assessing the penalty, which included fining the Patriots and taking away two future draft picks, Troy Vincent, the league’s executive vice president for football operations, said it was unlikely that the team employees could have deflated the balls without Brady’s knowledge. He also said Brady did not fully cooperate with the league’s investigation.
Brady denied knowing anything about the tampering of footballs and appealed the suspension. The N.F.L. Players Association called for an independent arbitrator to hear the case, but Goodell said he would hear the appeal, despite what many saw as a conflict of interest.
In May, Goodell hinted that Brady’s reluctance to cooperate with the investigation was critical to the league’s decision to suspend him, and that the league would look more kindly on him if he was more forthcoming.
Goodell heard Brady’s appeal in New York on June 23.
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Brady, who will be allowed to participate in off-season, training camp and preseason activities, can still sue the league in court. This year, Minnesota Vikings running back Adrian Peterson successfully argued in federal court that the arbitrator who heard his appeal was not independent.
The Patriots, who have won four N.F.L. titles since the 2001 season, have often been viewed as a team willing to bend or skirt rules. It is the second time in eight years the Patriots have been disciplined by the league. In 2007, New England and Coach Bill Belichick were fined $750,000 and lost a first-round draft pick after the Patriots videotaped Jets coaches’ signals in violation of league rules.
In is report on the decision, ESPN notes new facts that came to light after the initial report was released which no doubt played a huge role in how Goodell ruled on this appeal:
In announcing the decision, Goodell cited new information that on or shortly before March 6, Brady directed that the cellphone he had used for the prior four months be destroyed. The NFL said in the statement that Brady destroyed the phone even though he was aware that investigators had requested access to text messages and other electronic information that had been stored on the phone.
According to the NFL, Brady exchanged nearly 10,000 text messages, none of which can now be retrieved. The NFL also said in its statement that the destruction of the cellphone was not disclosed until June 18, almost four months after investigators first sought information from him.
Goodell said in the statement that Brady “went beyond a mere failure to cooperate in the investigation and supported a finding that he had sought to hide evidence of his own participation in the scheme.” Based on Ted Wells’ report and the evidence presented at that hearing, Goodell also said that Brady was aware of, and took steps to support, the actions of other team employees to deflate game footballs below the levels allowed under NFL rules.
This last fact, which was not disclosed until today, certainly does not help Brady’s credibility when he denies any involvement in a scheme to deflate the Patriots’ footballs below the levels allowed under league rules. In civil litigation, in fact, there is an evidentiary rule that allows for a fact finder to presume that evidence that was in control of one party that was destroyed or “lost” by that one party would have implicated them in the case at hand. In the case, that would mean that the fact that Brady destroyed his phone right before he met with the league’s investigator would lead to a presumption that contained somewhere within those 10,000 text messages was something that would have implicated him in the scheme or indicated that he had prior knowledge of it. In the Wells Report, you will recall, it was claimed that the equipment managers for the Patriots who were involved in this supposed scheme communicated with each other about it, and allegedly with Brady himself, principally through text messages. This, combined with the fact that Brady destroyed the phone, leads to what I would suggest is the entirely permissible conclusion that the allegation that Brady was involved in these communications about deflating footballs are completely true. At the very least, the revelation about Brady destroying evidence no doubt doomed whatever chance he had to get the four game suspension overturned or reduced.
This isn’t likely to be the end of the road for Deflategate. Even while the appeal was still pending in Goodell’s office, there were rumors that Brady and the NFL Player’s Union were already mapping out a legal strategy in anticipation of the suspension being upheld. More likely than not, we will see Brady file a lawsuit in Federal Court, most likely in New York, seeing to have the suspension overturned, and asking that it be stayed pending the resolution of the court case itself. While we’ll have to wait until it’s filed to see what the lawsuit actually encompasses, it’s likely that it will cover every aspect of the case from the merits of the league’s investigation and it’s determination that the football’s were in fact delflated prior to the AFC Championship Game to the allegation that, even if the allegations are true, the rules were not properly applied to him and should result in the punishment that was handed out. Additionally, it is expected that Goodell’s role in the investigation, sentencing, and subsequent appeal are unfair under applicable law, but the fact that everything Goodell did is authorized under the applicable Collective Bargaining Agreement would seem to make that argument pretty weak. Given the general reluctance of courts to get involved in private disputes like this, my instinct would be say that it’s unlikely that Brady would be successful in Court. However, the NFLPA has been successful before in getting suspension overturned or reduced so it is probably premature to dismiss the viability of any lawsuit. Additionally, it’s entirely possible that Brady will be at least initially successful in getting an injunction put in place that could allow him to start he season notwithstanding this suspension. If that happened, of course, he may end up having to serve the suspension at a later time in the season, which would arguably hurt the Patriots more than the current punishment, but that’s not for me say. In any case, while this may have been the end of the NFL’s proceedings in Deflategate, it’s unlikely that this is the end of the road for the dispute between Brady and the league.
Here’s Goodell’s ruling:
