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.”
THE NFL STATEMENT READS LIKE AN EMPLOYEE DISCIPLINE REPORT
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.”
LET THE APPEALS AND RECRIMINATIONS BEGIN
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: