Super Bowl Sunday: on a day when most Americans will be watching the game — or using the game as a good excuse to get their party on — some of us are reminded of the great economic engine that is the NFL. But how does it continue to increase in popularity and revenues? Should these not be declining given recent PR disasters and investigations into “deflate gate,” domestic abuse, discrimination, etc.?

Commissioner Rodger Goodell has been maligned by the media for “leading” a league that in many instances doesn’t seem to care. Team owners, however, have a different take. They see a man leading an unprecedented rise in league revenues — a leader that, after a series of mistakes, is becoming adept at calling audibles during workplace investigations.

This special Super Bowl edition of the HR Law Insider discusses calling audibles during the course of workplace investigations — when “going by the book” isn’t the best course of action to achieve the desired result.


For the uninitiated — for those who have been living in a cave — “deflate gate” is the name given to the ongoing scandal involving the New England Patriots. The Patriots are accused of improperly deflating footballs prior to their recent game against the Colts. Patriots quarterback Tom Brady has said that he likes his balls less inflated. So, when 11 of 12 Patriots’ balls tested at halftime proved to be deflated and below the league approved minimum, the you know what hit the fan.

The NFL has obtained videotape of a Patriots’ ball boy entering a bathroom with the balls and emerging 90 seconds later.  Commentators have three theories as to what happened in the bathroom. Numbers one and two are too obvious to mention. The third, and prevailing, theory is that the ball boy deflated the balls during his bathroom sojourn. Yes, one can deflate 11 balls well within 90 seconds:

There is indeed a distinct advantage to having deflated balls:


One would THINK that it would take several days for the NFL to investigate and determine what happened to those 11 balls.  The investigation would include:

  • Reviewing security videotapes;
  • Interviewing Brady and the Patriots’ coaching staff (e.g. I would have Brady handle deflated balls and inflated balls and ask him various questions abut how they feel and what he likes to test his credibility);
  • Interviewing the ball boys;
  • Interviewing sideline and other personnel who handled the balls;
  • Constructing a timeline of the balls and changing inflation levels;
  • Consulting ball pressure experts; and
  • Reaching a conclusion

The NFL, however, is nowhere near reaching a decision. Among other things, the league has hired lawyers and says it needs to interview as many as 40 people!

Is the NFL stalling? I think so. Anything that will affect the NFL’s biggest prize — the Super Bowl — must be stopped or, as is the case here, delayed until after the Big Game.

The NFL has called an audible in an effort to run out the clock. And it is working. Many are already “tired” of hearing about a scandal where nothing has been proven. Brady and the Patriots are free to go forward — more galvanized than ever to prove the haters wrong — and play the game. If they win, and are later determined to have cheated, many will say that they beat the Seahawks “fair and square” and “who cares.”

The NFL is equally free to go forward with its crown jewel game. If it is later decided that the Patriots cheated, the league will “get tough” and penalize the Patriots with the loss of a draft pick or two and perhaps a fine. Painful? Yes. But relatively little compared to the decision occurring BEFORE today’s game. Such a decision would have placed the league and Patriots in an awful and awkward position.


No two workplace investigations are the same. Investigations are not one dimensional: WHEN to take action is sometimes as important as WHAT is decided. Timing, while not everything, is oftentimes critical in how a company’s decision is evaluated by the public, by regulatory agencies (e.g. EEOC; Department of Labor; OSHA, etc.), and by judges and juries.

So, when the next scandal hits the NFL, or when your business faces its own workplace challenge, carefully consider: how and when to take action. Usually the answer is: “methodically and right away.” But sometimes your company may need to call an audible at the proverbial line of scrimmage — deviating from the so-called book because the book was written for most, but not all, situations.

Have a great Super Bowl Sunday.  I know I will be glued to the tube being the football geek that I am.

For those not averse to some strong language, watch Burt Reynolds himself resolve a workplace dispute on the gridiron — in my favorite football movie ever:






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