Tom Brady–Some Thoughts

I believe the punishment by the NFL of Tom Brady was too severe.

There is a lot of talk about the destruction of the phone being a part of a cover-up on the part of Tom Brady.  This is a legitimate argument because spoilation of evidence creates a legal presumption that the evidence was spoiled or destroyed because it would support a positive finding against the party committing the destruction. Despite this presumption, I do not agree with this decision for other reasons.

First of all, the NFL did not have an established policy with punishment for violations at the time of the incident.  It did  have a policy on the psi of the balls which included a range which each team or quarterback could control.  The range did not allow for the temperature or weather conditions.  They did not moniter the psi during the game.  Quarterbacks have a preference for psi. This variance has been allowed in the past.  All teams do not have to have the same psi.  To make matters more confusing, the score in the game was 40-7 in favor of the New England Patriots who were the superior team.  The psi of the Patriots ball did not have an effect on the other team as they prepare their own balls and the psi may not have affected the Patriots positively.

The media made a lot to do about the psi of the New England Patriots balls.  The NFL responded to the media pressure and decided to do something.  As a part of the investigation, Tom Brady was interviewed.  He reports that per his attorney, he was told the phone would not be needed.  When the issue of his cooperation or lack thereof was in question, he provided all the e-mails and contact numbers and tried to be as helpful as possible in reconstructing the content of the phone. An assistant did destroy his phone on the day of the interview.

Both the NFL and Brady have valid points.  The league points to the spoilation of evidence of the phone as evidence of a cover-up or reason for the league to presume that the phone was destroyed because it had evidence of wrongdoing on the part of Brady.  Brady has a more valid point in that before this incident, the custom and practice of the league (industry) was to allow the quarterback to have the ball the way he liked to handle the ball with respect to psi.  There was an established penalty for violations of the equipment which call for a fine per the Collective Bargaining Agreement (CBA, hereinafter .)  The general rule is that the custom and practice is as much a part of the contract as if it had been bargained for provision.  It can be read into the CBA.  The penalty per the CBA was a progressive fine for equipment violations.  Thus the question here will be determined by the judge and how he rules on the issue of jurisdiction.  If he follows that the general rule applies and that a custom and practice is a part of the bargaining agreement as if it had been bargained for, the punishment per the CBA for equipment violations is progressive fines. If the judge rules that this psi violation comes under personal conduct affecting the integrity of the game, instead of the contract; then Roger Goodell has made a rule and applied retroactive punishment before establishing any written policy.  Additionally, the general rule is that laws and rules are prospective unless made retroactive.  Therefore, it is unfair to impose a four game suspension as a penalty on Brady or to apply a penalty retroactively.  This makes Goodell’s conduct unconstitutional in that the league has rules that the player does not learn of their existence until he breaches the rule.  The only way a player can learn what some rules are is to breach the rule.  These are ex post facto rules and are vague and overbroad as well. Additionally, the league has a bargaining agreement which may have been violated in the manner in which they requested the phone and in imposing this penalty.

Tom Brady is being treated unfairly by this severe punishment even with the spoilation of evidence of the phone because the score was 40-7.  Thus the psi was harmless error.  The Patriots did not steal the game plan of the other team to obtain an unfair advantage.  They did not steal the other team’s ball or affect it in any way. The Patriots won the game fair and square. Let us use common sense here.  Brady should not be punished with a loss of four games because he beat another team and some of his balls had less air in them.  The other team’s balls were normal and they only made seven points.  Football is running, tackling and passing among other things. The other team lost in all areas.  This is Patriot bashing for winning so much.  This is media driven and jealousy on the part of other teams.  I understand the NFL’s position:  it has to protect the reputation and integrity of the league.  The league must avoid the appearance of unfairness and impropriety.  The league does not want it to appear that games can be fixed.  Goodell probably wanted to avoid the appearance of being “soft” on a superstar and avoid another Ray Rice reaction.  This is not a Ray Rice or other substance abuse kind of case where the policy is established and in place. This is a situation where either the policy was established and and the punishment is a fine or it is in one of the  “gray” areas of the league policy in which Roger Goodell is in control.  I understand both positions and I still think the punishment of Tom Brady was too severe because the custom and practice of the industry before this incident was to allow the quarterback to adjust psi of the ball to their preference.  All of the balls were not out of range with respect to psi.  The league has not given a reasonable explanation for the variance other than to allege possible wrongdoing on the part of the New England Patriots. Both the Patriots and the NFL were negligent with respect to monitoring the psi for this game.

PS:  I have not read the full Well’s report of the NFL nor have I been privy to the transcript of the appeal hearing.  My background is labor law as I was a co-chairperson of a union where the unions formed the 1st Human Services Union  in Michigan. I strictly argued Labor Law.  I did not discuss the punishment of other athletes for other things which I did not think was relevant to this matter.