Category Archives: Deflation gate


This morning the United States Second Circuit Court of Appeals reinstated New England Patriots quarterback Tom Brady’s four game suspension for his involvement in “deflate gate” — deflating footballs for an NFL game.  Here is the Court’s decision.

The Court’s decision reflects the general enforceability of arbitration agreements and the enormous power of arbitrators to decide parties’ disputes.


For a brief refresher, here is how the drama began:

On January 18, 2015, the New England Patriots and the Indianapolis Colts played in the American Football Conference Championship Game at the Patriots’ home stadium in Foxborough, Massachusetts to determine which team would advance to Super Bowl XLIX.  During the second quarter, Colts linebacker D’Qwell Jackson intercepted a pass thrown by Brady and took the ball to the sideline, suspecting it might be inflated below the allowed minimum pressure of 12.5 pounds per square inch.  After confirming that the ball was underinflated, Colts personnel informed League officials, who decided to test all of the game balls at halftime.  Eleven other Patriots balls and four Colts balls were tested using two air gauges, one of which had been used before the game to ensure that the balls were inflated within the permissible range of 12.5 to 13.5 psi.  While each of the four Colts balls tested within the permissible range on at least one of the gauges, all eleven of the Patriots balls measured below 12.5 psi on both.

HR Law Insider has written here, here, and here, about what happened next in the deflate gate scandal.  In short, NFL Commissioner Roger Goodell suspended Brady for four games, but that suspension was overturned after Brady sued the NFL in federal court.  That decision has now been reversed.


In deciding against Brady, the Court of Appeals shot-down each of his arguments.  Detailing each argument in this article is impractical, but here is an example of how Brady’s conduct worked against him:

“At oral argument, the NFL Players’ Association further contended that the Commissioner was improperly punishing Brady for destroying his cell phone because he was required to institute a new disciplinary action (so that Brady could then appeal any determination that he had destroyed his cell phone). This argument fails because, as set forth in the original disciplinary letter, Brady was punished for failing to cooperate, and it is clear from the Commissioner’s decision that Brady’s cell phone destruction was part and parcel of the broader claim that he had failed to cooperate.”

The Court of Appeals decision was not without strongly worded dissents within the multi-member appellate panel.  The dissenters’ theme — sure to be adopted by Patriot’s fans — is that the NFL was unfair to Brady.  As noted by one dissenter:

“[T]he Commissioner’s murky explanation of Brady’s discipline undercuts the protections for which the NFLPA bargained on Brady’s, and others’, behalf.  It is ironic that a process designed to ensure fairness to all players has been used unfairly against one player.”


The next stop for the deflate gate saga is the United States Supreme Court.  Should the highest court in the land decide to take the case, we may well learn which justices understand the game that has virtually become a national obsession; and we may also learn if there are any Patriots fans on the bench.

For all you trivia buffs, Byron Raymond “Whizzer” White (1917 – 2002) won fame both as a football halfback and as a Supreme Court Judge.  Born and raised in Colorado, White played in the NFL for three seasons.


If you are a business or organization that does not want a judge or jury to decide your dispute, embed an arbitration provision in your contract(s).  Understand, however, arbitration agreements must be carefully drafted to be enforceable.  Contact counsel to understand the pros and cons of arbitration agreements.

Art Bourque has guided businesses and individuals for 25 years on arbitration agreements, employment law, and commercial arbitration.  Contact Mr. Bourque with any questions concerning this article.


In a long awaited ruling,  federal judge  Richard M. Berman overturned the NFL’s four game suspension of New England Patriots quarterback Tom Brady in the Deflategate case.

The judge’s decision provides employers with key takeaways when dealing with employee misconduct.  Before discussing those takeaways, here is the full decision.


The judge’s decision is lengthy, but can be boiled down to the following rulings:

  • “The Court finds that Brady had no notice that he could receive a four-game suspension for general awareness of ball deflation by others or participation in any scheme to deflate footballs, and non-cooperation with the ensuing Investigation.
  • Brady also had no notice that his discipline would be the equivalent of the discipline imposed upon a player who used performance enhancing drugs.
  • In further support of his claim that there was no notice of his discipline, Brady points to the testimony of Mr. Wells, who acknowledged the following at the arbitration hearing:  “I want to be clear– I did not tell Mr. Brady at any time that he would be subject to punishment for not giving– not turning over the documents [emails and texts]. I did not say anything like that.”
  • The Court concludes that, as a matter of law, no NFL policy or precedent notifies players that they may be disciplined (much less suspended) for general awareness of misconduct by others. And, it does not appear that the NFL has ever, prior to this case, sought to punish players for such an alleged violation.”

Judge Berman’s decision further admonishes the NFL for its failure to provide Brady with the ability to confront witnesses during the hearing and obtain documents in discovery:

  • First, the judge agreed with Brady’s contention that:  “Commissioner Goodell’s denial of the testimony of Jeff Pash at the arbitral hearing was fundamentally unfair because (1) the NFL publically declared that NFL Executive Vice President and General Counsel Jeff Pash was the co-lead investigator on the Wells-Pash Investigation, and (2) Pash was allowed to review a draft of the Wells Report and to provide Paul, Weiss with written comments or edits prior to the Report’s release the public.
  • Next, the judge found “that Commissioner Goodell’s denial of the Players Association’s motion to produce the Paul, Weiss investigative files, including notes of witness interviews, for Brady’s use at the arbitral hearing was fundamentally unfair and in violation of 9 U.S.C. § 10(a)(3) and that Brady was prejudiced as a result. The interview notes were, at the very least, the basis for the Wells Report, and Brady was prejudiced by his lack of access to them. Brady was denied the opportunity to examine and challenge materials that may have led to his suspension and which likely facilitated Paul, Weiss attorneys’ cross-examination of him. Because the investigative files included the unedited accounts of the witness interviews, the Wells testimony at the arbitral hearing failed to put Brady “in the same position as the document[ s] would [have].”

In sum, the NFL’s two fatal errors were (1) failing to warn players that deflating footballs or similar conduct could result in a suspension and (2) unfairly denying Brady the right to obtain investigatory documents and to confront a witness to the investigation which led to his suspension.


Here are four takeaways for employers from the judge’s decision:

First, employers should have extremely broad language in employee handbooks that encompass a wide range of misconduct that can lead to discipline up to and including discharge.  While “deflating footballs” is not likely to be included as a dischargeable offense in your company’s employee handbook, management should annually review the handbook to ensure it is appropriately broad and complies with the law (some handbooks go too far and state policies which, if followed, are illegal).

Second, if you elect to engage in arbitration to resolve disputes — I am generally not a fan of arbitration — then the arbitration process must be fair to all parties. Judges rarely overturn arbitration decisions, but when they do,  procedural unfairness is a common basis for the decision.

Third, I believe the judge could have found for the NFL as easily as he found against it.  I am not suggesting Judge Berman was improperly biased.  However, aspects of his ruling are troubling, including the notion that a player should not know he may be suspended for (a) engaging in a conspiracy to cheat and then (b) covering up that conspiracy by refusing to cooperate with an investigation.

The lesson:  any time a company or organization — in this case one of the largest and most profitable organizations on earth — places its fate in the hands of a judge or other third party, control is lost; and the resulting decision often depends more on who is deciding the case than the actual facts of the case (e.g. the OJ Simpson case).

Fourth, choose your legal counsel wisely.  It is reported that the NFL paid “neutral” investigator Ted Wells over a million dollars for a report which had more holes in it than Swiss cheese. The NFL, presumably advised by other high paid lawyers, made a number of other tactical mistakes.

If you cannot avoid a dispute, select legal counsel based on proven experience AND a targeted and thoughtful interview and selection process that is not affected by the size of your lawyer’s cufflinks, firm letterhead, or ego.


The Super Bowl champion Patriots are back in business: the NFL season starts next week and quarterback Tom Brady is back at the controls.




The NFL vs. Tom Brady saga is the gift that keeps on giving.  Yesterday, the New England Patriots released a statement called “The Wells Report in Context.”  It should be named “An Attack on the Wells Report and Why We Hate the NFL” because it goes after Wells’ conclusions — which conclusions the NFL adopted — in a multitude of ways.

The Patriots statement attacking the Wells report is often as amusing as it is long.  One example:  According to the Patriots, ball boy Jim McNally didn’t call himself “The Deflator” because he took air out of footballs at the behest of Tom Brady;  he called himself that because he’s overweight and trying to lose a few pounds.  Many doubt the Patriots spin on the self-styled “deflator.”


When any business conducts a workplace or other investigation, that investigation may later be challenged in an EEOC proceeding, lawsuit, or arbitration.  It is thus critical to get the investigation right — to make it unassailable.

But investigations often involve difficult credibility calls, memory foibles, and ambiguous evidence.  What if a company’s “heart” is in the right place — it means well — but it is later proved that it came to the wrong conclusion?


If a company terminates or disciplines an employee based on a good faith, reasonable belief that an employee engaged in misconduct, but is later shown to be mistaken, the company will likely not  be found liable for discrimination.

For example, in Cervantez v. KMGP Services Co. a company fired an employee after it discovered that his computer User ID and password had been used to access pornographic Web sites from one of the company’s shared computers in the break room. The company conducted an investigation and determined that the plaintiff had been at work on the dates that his User ID was used to access hundreds of these sites. When the employee was told that he was being fired, he denied having visited any such Web sites, and then sued the employer, alleging that he was fired because of his age in violation of the Age Discrimination in Employment Act.

After he was fired, the employee obtained a copy of the log of Web sites he allegedly visited with his User ID. He admitted that the log showed attempts to access prohibited sites on dates that he was at work, but he also identified attempts made on dates that he did not work or at times long after his shift had ended.

A federal court found that the employer’s reason for discharging the employee – violation of its computer use policy – was a legitimate, nondiscriminatory reason, and that the apparent inconsistencies in the log detailing the Web sites the plaintiff allegedly accessed did not demonstrate that the employer’s reasons for firing him were pretextual. The Court ruled that “a fired employee’s actual innocence of his employer’s proffered accusation is irrelevant as long as the employer reasonably believed it and acted on it in good faith.”


An employee is protected against retaliation for opposing perceived
discrimination if the employee had a reasonable and good faith belief that the opposed practices were unlawful.  Thus, employer retaliation can be found whether or not the challenged practice ultimately is found to be unlawful.

As one court  has stated, requiring a finding of actual illegality would “undermine Title VII’s central purpose, the elimination of employment discrimination by informal means;  destroy one of the chief means of achieving that  purpose, the frank and non-disruptive exchange of ideas between employers  and employees; and serve no redeeming statutory or policy purposes of its own.”

Here are two examples applying the “good faith” standard:

Example 1 – Employee complains to her office manager that her
supervisor failed to promote her because of her gender.
(She believes that sex discrimination occurred because she
was qualified for the promotion and the supervisor promoted
a male instead.)  Employee has engaged in protected opposition
regardless of whether the promotion decision was in fact
discriminatory because she had a reasonable and good faith
belief that discrimination occurred.

Example 2 –  Same as above, except the job sought by Employee was
in accounting and required a CPA license, which Employee lacked
and the selectee had.  Employee knew that it was necessary to have
a CPA license to perform this job.  Employee has not engaged in
protected opposition because she did not have a reasonable
and good faith belief that she was rejected because of sex


Perfection is not of this world.  Courts and judges recognize this fact.  Thus, if an employer terminates or disciplines an employee based on a good faith, reasonable belief of misconduct, in most cases the employer will obtain a defense verdict even if it is  determined the employer was mistaken.

The key, therefore, is for employers to be able to prove that they had a good faith, reasonable belief when they disciplined or terminated the employee.  This is primarily accomplished by conducting a prompt and thorough investigation when misconduct comes to light, and by maintaining a solid documentary record of the investigation and evidence proving the misconduct.

HR Law Insider’s next article will drill down on what constitutes a good investigation versus a bad investigation — providing  employers the tools to make good faith decisions that will withstand EEOC, court, and public scrutiny.

Until then, the football follies are sure to continue, providing more fodder for comics, who are having a field day:


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: