Category Archives: Cell phones


This afternoon the NFL gave New England Patriots quarterback Tom Brady a four-game suspension for his role in the team’s illegal deflation of footballs. The league also fined New England $1 million and took away two draft picks, including a first-round choice in 2016, citing “conduct detrimental to the integrity of the N.F.L.”

NFL punishes Patriots


The NFL’s statement reflects a methodology (1) employers use to determine employee discipline and (2) governing agencies use to sanction businesses:

“It is impossible to determine whether this [ball deflation] activity had an effect on the outcome of games or what that effect was. There seems little question that the outcome of the AFC Championship Game was not affected. But this has never been a significant factor in assessing discipline. There are many factors which affect the outcome of a game. It is an inherently speculative exercise to try to assign specific weight to any one factor. The key consideration in any case like this is that the playing rules exist for a reason, and all clubs are entitled to expect that the playing rules will be followed by participating teams. Violations that diminish the league’s reputation for integrity and fair play cannot be excused simply because the precise impact on the final score cannot be determined.

“Here, there are several factors that merit strong consideration in assessing discipline. The first is the club’s prior record. In 2007 the club and several individuals were sanctioned for videotaping signals of opposing defensive coaches in violation of the Constitution and Bylaws. Under the Integrity of the Game Policy, this prior violation of competitive rules was properly considered in determining the discipline in this case.

“Another important consideration identified in the Policy is ‘the extent to which the club and relevant individuals cooperated with the investigation.’ The Wells report identifies two significant failures in this respect. The first involves the refusal by the club’s attorneys to make Mr. McNally available for an additional interview, despite numerous requests by Mr. Wells and a cautionary note in writing of the club’s obligation to cooperate in the investigation. The second was the failure of Tom Brady to produce any electronic evidence (emails, texts, etc.), despite being offered extraordinary safeguards by the investigators to protect unrelated personal information. Although we do not hold the club directly responsible for Mr. Brady’s refusal to cooperate, it remains significant that the quarterback of the team failed to cooperate fully with the investigation.

“Finally, it is significant that key witnesses — Mr. Brady, Mr. Jastremski, and Mr. McNally — were not fully candid during the investigation.

“In accepting the findings of the report, we note that the report identified no evidence of wrongdoing or knowledge of wrongdoing on the part of any member of the coaching staff, including Head Coach Bill Belichick, or by any Patriots‘ staff member other than Mr. Jastremski and Mr. McNally, including head equipment manager Dave Schoenfeld. Similarly, the Wells report is clear that Patriots ownership and executives did not participate in any way in the misconduct, or have knowledge of the misconduct.

“Nonetheless, it remains a fundamental principle that the club is responsible for the actions of club employees. This principle has been applied to many prior cases. Thus, while no discipline should or will be imposed personally on any owner or executive at the Patriots, discipline is appropriately imposed on the club.”


Brady and the Patriots are almost sure to challenge the NFL’s discipline.  The HR Law Insider will publish a follow-up edition after the dust settles.  Until then, I am considering applying for an assistant coach position to try and smooth the waters in New England and ensure that all balls remain INflated:


Texting is becoming commonplace in society — and the workplace.  Texting can be a useful tool.  However, texting problems are surfacing in the press and in the courts on a seemingly daily basis.

The Tom Brady “deflate gate” debacle presents an excellent example of how texts can be used against an organization or individual.  After discussing the Brady situation, this edition of the HR Law Insider provides employers with some guidelines relating to employee texting.


Tom Brady is the quarterback of the New England Patriots football team. Brady has won four Super Bowls and many other accolades.  He is married to Giselle Bundchen too.  In short, life is good for Tom Brady — at least it was until this week.

On May 6, 2015, investigators hired by the NFL concluded that Brady likely conspired to deflate footballs in violation of NFL rules during a playoff game last year.  If so, then Brady likely lied during the course of the NFL’s investigation of the incident.  Brady’s image has been deeply tarnished and he faces imminent discipline from the NFL.

The NFL’s investigator’s report relied to a significant extent on electronic information obtained from cell phones.  Obviously, the deflation conspirators did not think ahead and understand:  cell phones contain a wealth of information that can and will be used against parties in litigation and other proceedings.


As noted in the report:

“[T]aking the text messages as a whole, Brady is a constant reference point in the discussions between [ballboys] McNally and Jastremski about inflation, deflation, needles and items to be received by McNally. In response to Jastremski’s offers of sneakers and clothing, for example, McNally identifies Brady as the catalyst for those offers (“Tom must really be working your balls hard this week”; “Tom must really be on you”). And unhappiness with Brady is referenced by McNally as a reason for using the “needle” to inflate rather than deflate footballs (“Fuck tom….make sure the pump is attached to the needle…..fuckin watermelons coming”).

Brady is thus central to the discussions of inflation and deflation in the text messages.  Additional evidence of Brady’s awareness includes a material increase in the frequency of telephone and text communications between Brady and Jastremski shortly after suspicions of ball tampering became public on January 19 suggests that Brady was closely monitoring Jastremski. After not communicating by telephone or text for more than six months (according to data retrieved from Jastremski‟s cell phone), Brady and Jastremski spoke twice by telephone on January 19 (calls lasting a total of 25 minutes and 2 seconds), twice on January 20 (calls lasting a total of 9 minutes and 55 seconds) and twice on January 21 (calls lasting a total of 20 minutes and 52 seconds) before Jastremski surrendered his cell phone to the Patriots later that day for forensic imaging. These calls included conversations relatively early during the mornings of January 19 (7:26 a.m. for 13 minutes and 4 seconds), January 20 (8:22 a.m. for 6 minutes and 21 seconds) and January 21 (7:38 a.m. for 13 minutes and 47 seconds).

Brady also took the unprecedented step of inviting Jastremski to the QB room in Gillette Stadium on January 19 for the first and only time that Jastremski can recall during his twenty-year career with the Patriots, and Brady sent Jastremski text messages seemingly designed to calm Jastremski (“You good Jonny boy?”; “You doing good?”). For his part, Jastremski sent Brady text messages confirming that he was okay (“Still nervous; so far so good though”) and cautioning Brady about questioning (“FYI…Dave will be picking your brain later about it. He’s not accusing me, or anyone…trying to get to bottom of it. He knows it’s unrealistic you did it yourself…”).”


Businesses must take employees’ use of cell phones very seriously.  Employers should assume that if there is a dispute or litigation between the company and an employee or third party, discovery will uncover:

  • Texts by the employee
  • Emails by the employee
  • To whom the employee had telephone conversations, and when and how long the calls occurred
  • Images or pictures taken and/or conveyed by the employee
  • Other information on the cell phone (possibly confidential company information)

Therefore, all businesses should implement and enforce clear policies regarding the use of cell phones and texting.  Policies should state, among other things, that:

  • Employees should make personal cell phone calls or texts during break or lunch times to the maximum extent possible.
  • Employees must follow all company policies, and applicable local, state and federal laws and regulations regarding the use of cellphones, at all times.
  • Cell phone use,  including but not limited to phone calls, emails, and texting, must never include language that is obscene, discriminatory, offensive, prejudicial or defamatory in any way (such as jokes, slurs and/or inappropriate remarks regarding a person’s race, ethnicity, sex, sexual orientation, religion, color, age or disability).
  • The use of camera or other video recording on company premises is prohibited without the express written permission of the President of the Company and of the person(s) present at the time.
  • Employees whose job responsibilities include driving and who must use a cell phone for business use, are expected to refrain from using their phone while driving. Allow voice mail or your passenger to handle calls when possible. Safety must come before all other concerns.
  • Any violation of this policy may result in discipline up to and including discharge.
  • Managers and supervisors are expected to serve as role models for proper compliance with the provisions above and should regularly remind employees of their responsibilities in complying with this policy.

In conclusion, implementing and enforcing a solid cell phone policy will prevent your company from being blind-sided and embarrassed by inappropriate and damaging texts.

For a different, but much funnier, take on the Brady situation, enter Jon Stewart: