Translating The Deflategate Decision Into English

First: the disclaimer. Yes, I am a licensed and practicing attorney. My litigation practice centers on insurance disputes – if something happens to you or your property and the insurance company refuses to pay, I’m your guy. I am not, however, an employment or labor-relations attorney and I have precious little experience with arbitration appeals in the federal courts. So what follows is an educated conversation about Judge Berman’s opinion in the Brady case. It is NOT a "legal opinion" of the sort you’d get if someone was paying me money to do this. I have not researched any cases, checked the authorities cited by the Court, nor done any of the other things that would be required to write an actual brief to support either side in an appeal.

Are we clear on that? Anyone who wants to discuss the matter in more detail (or hire a lawyer who could use the work -  just sayin') should contact me through the information at my website.

So why am I writing this? It’s because I’m already sick to death of the weird rhetoric flying back and forth. The deflategate ruling is worth some serious conversation, but only if people know what the parties are fighting about.

False Assumption #1

I've read some variation on this line often enough to be heartily sick of it:

The CBA makes Roger Goodell God-Emperor for player discipline, so the NFLPA and Brady should not be able to complain even if he pulls his decisions from his nether regions.

Not in America my friend! No way, no how, not ever.

No matter what the monied and mighty would have you believe, there are lots of contracts that can’t be enforced as written and many reasons why that’s so. E.g., a person cannot sign himself into slavery; or more precisely, he can sign a paper saying "I'll be your slave" but (a) no court would help his ‘owner’ to enforce that deal, and (b) the ‘owner’ could not defend himself against a lawsuit by saying, "but it’s okay to do behave like this toward a slave…" Closer to home, vast portions of your typical insurance contract can’t be enforced as written (I litigate this all the time), and I’ve reviewed some old oil-and-gas leases where I’d guess that less than a third of the terms would actually hold up.

Why is this so? Because a contract that goes too far typically gets cut back to the furthest limits allowed by law.

[A brief legal-nerd digression: the actual "contract" isn't what's on the paper, but rather what the parties intended to do. The paper is just the best evidence of that intent. So when a judge sees a clause and concludes, "they can't have meant this literally because it goes too far," he or she will almost always follow up by saying, "they must have just forgotten to add 'up to this point.' I couldn't swallow anything more than that."]

Ahem. The bottom line is that many standard contracts - especially those written for the protection of money and might - have language that goes way beyond anything our society would enforce. Doing so (a) lets you use the written words to bully the uninformed, and (b) avoids the need to keep track of where the legal "edges" may be in a given time or jurisdiction.

[My daughter says this needs another legal-geek digression to be entirely clear. Once deflategate left the private halls of the NFL and entered an actual court of law, the standards became a whole lot stiffer - as well they should. When push comes to shove, Judge Berman's decision is backed by men with guns (police) who can use physical force to ensure compliance or punish defiance. Regular life is filled with arbitrary, kangaroo courts that ignore due process all the time in their quest to enforce various social rules. If no one complains, those rulings get followed.

By appealing to an actual court of law, Tom Brady was effectively asking the men-with-guns to stop the NFL from causing him physical/financial harm. The presence of gunmen changes everything, and requires all these extra formalities and stricter standards. Think I'm exaggerating? Go visit a local courthouse and watch a hearing on even the pettiest civil case. The physical power of The State will be very obvious even if the actual guns are down the hall. End of digression.]

This was not about "process" alone. The main part of the decision says that Brady was convicted for breaking rules that either don't exist or don't apply to the sin of tampering with a football.

There’s an old saying that "ignorance of the law is no excuse." That is only true because laws are published. They are there and waiting for anyone who wants to know the rules before he decided to act. An unpublished law is a nullity - it doesn’t exist at all from a court's point of view. The word "published" has a meaning, too: it requires "reasonably clear" statements of both (a) the conduct that’s been forbidden, and also (b) the consequences for doing the act anyway. If either of those are missing, the rule is too vague to give fair warning, and thus too vague for a court to enforce.

Here's another way to look at it. You have every (legal) right to violate a given rule if you think its worth the price of doing so, and thus the rulemaker has a duty to clearly warn you about what constitutes a "violation" and what the price will be.

That’s a basic rule of due process. But just to be extra sure, at page 19 Judge Berman’s emphasizes that "it is the ‘law of the shop to provide professional football players with advance notice of prohibited conduct and potential discipline." In other words, the NFL has routinely forgiven players in the past when the rule in question wasn’t properly published. Those earlier precedents tell the Court that the CBA was meant to follow this basic rule even if they forgot to put it in writing.

So, you ask, what are the rules we’re talking about? That was a major bone of contention. It comes down to a few distinct pieces.

What are the rules about tampering with a football?

Roger Goodell’s opinion compared tampering with a football to a violation of the Performance Enhancing Drug ("PED") rules. At pages 21-23 the Court basically says, "That’s an absurd analogy and how dare you waste everyone’s time with such nonsense!" Seriously. That overreach biased the Court against everything else the NFL was trying to argue.

According to Judge Berman, the PED policy is a stand-alone section of the CBA ("sui generis") with its own history and rules. The rules against steroid use apply to that and that alone. They put no one on notice that it’s illegal to deflate a football, or take any other act that doesn't involve the listed PED's. In the same vein, the fact that players can be suspended for PED use does not amount to fair warning that a player might be suspended for deflating a football.

I have to agree with the Judge on this one.

Brady (via his representative, the NFLPA) argued that the proper rule to apply was the "Player Policy" that bans "Other Uniform/Equipment Violations". The actual rule can be found here at Section 5, Article 4. On-field penalties appear at the bottom. This argument is discussed at pp. 21-30 of the Opinion and wanders a bit, but it's easy to summarize. The NFLPA is arguing that if Brady had deflated the footballs himself, his punishment could have been nothing more than a fine: beginning with $5,512 levy for a first offense.

The NFLPA has a good point here. That is the proper starting point. But it isn't necessarily the ending point, because neither deflating a football nor conspiring with others is a specifically listed offense. Consider stickum, which sounds like a good analogy to me. That is specifically banned, at Rule 5.4.(i). Thus a player who gets caught using stickum can only be fined in the designated amounts, and punished on game day in the designated ways. But what should happen to a QB who creates a scheme that lets his WR's hide their stickum in a way that takes several games to discover? How should he be punished? There is enough wiggle room in those distinctions for the NFL to legitimately argue that the WR's get fined, but the QB did something worse. Bigger-fine worse? Suspension-worthy worse? That is the question this case should have been trying to solve. The Court never really got there because Goodell's analogy to PED's was so over the top.

By contrast, there was a specific rule on football deflation that justified the penalty imposed on the Patriot organization: the "Competitive Integrity Policy". The Patriots were investigated, charged, and punished under that rule; did not appeal that ruling; and thus the organization's punishment will stand regardless of what happens to Tom Brady. But as the Court points out (and the parties agreed), the Competitive Integrity Policy only applies to team officers and coaches, and not to the players. Indeed, Judge Berman ruled that the NFL couldn't apply that rule to the players even if it wanted to because, among other things, the Competitive Integrity Policy appears in a separate rule book the players never receive. See fn. 19 and the discussion at p. 30.

The NFL basically acknowledged this and said that Brady was instead punished under a third rule: the infamous "conduct detrimental to the integrity of, or public confidence in, the game of professional football." This is where the Opinion veers off-kilter.

Why the NFL will appeal and why it's likely to win, at least in part.

This discussion begins at p. 30 with the judge pointing to a few instances in which teams (but not players) were punished because staff members had violated an equipment rule - like the Minnesota game where an equipment guy tried to heat up a ball before a field goal attempt. It’s a weak analogy because no one accused any of the players of knowing about or causing the lackey to cheat. If the NFL made a clear finding that Brady was involved with the acknowledged scheme to deflate these footballs, then he would be in a different situation – especially because the aforementioned rule that binds equipment guys does not apply to him.

So I would argue that the NFL has a powerful point here. It might take some imagination, but I'm pretty sure we could all dream up a scenario where a "mere equipment violation" could get extreme enough to justify more than a fine. Heck, I already did it with the analogy to a QB who incites his WR's to systematically break the no-stickum rule. In a formal sense, the thing that was "worse" about my hypothetical QB is that he wasn't merely cheating on a particular play, but was organizing others to attack the integrity of the game.

Thus I agree that the NFL has a real argument that Brady might have gone beyond the $5,512 threshold, and could deserve additional punishment under the "conduct detrimental" rule. The questions that should have been asked are whether the NFL (a) had sufficient evidence to say that he really did cross that line, and (b) imposed an appropriate level of extra penalty above and beyond a $5,512 fine.

The biggest bomb in the decision is that the Court didn’t really go there. Instead, Judge Berman went off on a far-ranging challenge to whether the "conduct detrimental" policy is clear enough to be enforced at all. Ever. Against anyone. For anything.

The discussion takes place at page 31:

In both the Ray Rice and the Adrian Peterson case, the players could, perhaps, be said to appreciate that acts of domestic violence might be deemed "conduct detrimental." And yet, in both of these cases, the players were disciplined only after findings were made under the specific domestic violence policy (New NFL Personal Conduct Policy (Aug. 2014))… Rightly so, because an applicable specific provision within the Player Policies is better calculated to provide notice to a player than a general concept such as "conduct detrimental."

[Emphasis in original].

When I was 1st year law student mumblety-mumble years ago, my Torts professor popped out a pearl of wisdom I've quoted ever since:

Most of civil law comes down to what a "reasonable man" would say was "reasonable under the circumstances." That’s what juries are for.

There’s a lot of truth to that. "Reasonable under the circumstances" is how the law fudges away the weird, unique, and inconsistent fact patterns created by the even weirder, more unique, and less consistent men and women it’s supposed to control. It’s hard to imagine a vaguer phrase, nor one that’s more essential to our legal system and has been upheld more often.

There are other lawyers on this site, and every one of them just read that, grinned, and nodded his or her head in agreement.

I submit that "conduct detrimental" is the NFL equivalent. Decades ago the league discovered that occasional players will go off and do completely unacceptable things that range from the utterly whacky to the all-but-evil. The league also learned that a public relations nightmare will ensue every time one of those players returns to the field without an official reprimand. Never mind that there was no NFL rule against that specific act. You and I would face consequences at our job, so we expect these NFL players to suffer at theirs. And the NFLPA agreed! The good of the game demanded something. The problem was, the variety of offenses made it impossible – literally impossible – to write a specific list of banned activities, let alone an appropriate penalty. So the two sides hammered out the vague phrase "conduct detrimental" and gave the Commissioner unilateral power to decide both (a) when matters had gone "too far," and (b) what kind of response would be needed to assuage the public.

The NFL can’t live without some equally-vague version of the "conduct detrimental" policy. By casting doubt on that policy, Judge Berman has all but forced the NFL to appeal. I, for one, will be shocked if his opinion isn’t reversed on that basis.

Please note, however, that a reversal would not necessarily reimpose the Brady suspension. It will simply send the case back to Berman with instructions to address the questions that need to be answered. And if it hasn't become clear yet, I think Tom Brady has very good arguments that his penalty should have been along the lines of a large ($250,000?) fine, with lost playing time measured in snaps rather than games. But that’s another story.

Judge Berman had a huge problem with the scale of the penalty, even after considering the "cover up" angle.

I’ll be brief since this got touched on above. The key point is that each specific violation that Tom Brady was charged with has a defined "price." Tampering with a football equals a designated fine. The "conduct detrimental" penalty - if the NFL has enough evidence to conclude that Brady was the spider at the center of a systematic conspiracy to cheat - justifies a larger fine, with even a minor suspension as a last resort for extraordinary cases.

The Opinion quite properly points out that failure to cooperate with a league investigation – or even actively obstructing it – also results in a fine, and never anything worse. On this point the court quoted former Commissioner Tagliabue’s order in the applicable part of the the Bountygate case:

Tabliabue stated: "There is no evidence of a record of past suspensions based purely on obstructing a League investigation. In my forty years of association with the NFL, I … cannot recall any suspension for [lying to the investigators]. There is no evidence of a record of past suspensions based purely on obstructing a League investigation.

P. 20. There is a similar discussion at pp. 24-25 about a $50,000 fine imposed on Brett Favre for obstruction of a League sexual harassment investigation.

The Court has this one right too. A reasonable person in Brady’s position could/should have known that he could be fined for inciting the equipment guys to push the limits on how soft a football was allowed to be. He should have also known that further fines could pile up for lying about his involvement, and/or for trying to hide it (e.g., by destroying a cell phone). But based on both the written rules and the history there was no way he could have predicted that his acts could result in a suspension. Let alone a 4-game suspension. [BTW, this is why it matters that Ted Wells never gave Brady a specific warning that he might be suspended for not turning over his phone and other records. If he had, Brady could have reconsidered his decision.]

It should surprise no one if the NFL argues for higher and more explicit penalties for "failures to cooperate" when the next CBA gets negotiated. Personally, I think the League might have a point. But I have to agree that under the current CBA, even destroying his phone to hide evidence should not have exposed Tom Brady to anything beyond a very stiff fine.

So what about the actual offense? Was Brady involved with deflategate or not?

We’ve been told over and over that the appeal was about "process" and not whether the rule was broken. That’s not 100% true. The Opinion accepts that the footballs in question actually were deflated. But the judge had a real problem with whether the NFL had enough evidence to blame Tom Brady for acts performed by other people.

Consider this analogy. You order pizza from a delivery company. The delivery boy races to get it to you on time, driving so erratically that he runs over an innocent victim. Who’s responsible?

I know of cases where this actually happened. The driver would clearly be liable. The company might be liable too, if it had some kind of policy in place that forced its workers to extreme behavior. (This is why the "30 minutes or your pizza is free" guarantees disappeared. Those policies led inevitably to maimings and deaths that the companies didn’t want to pay for).

But say the person applying the pressure was not the company, but rather some senior manager in another division. If he keeps calling the shop to bitch and moan about slow deliveries, is that enough to make him personally liable when someone gets run over? What if he gave personal, off-the-record bonuses to the "on time champ"? And even if he did, why does that make him all that different from the vocal executive who was only "generally aware" that his displeasure causes an SRD effect?

The outcome at trial would depend on very specific questions about what the manager said, an where, when, how, and to whom he said it. How much control did the manager have, in what way did his audience understand his words, and should he have predicted that response?

Now bring it back to football, using my stickum analogy. A QB who devised the scheme and pushed his WR's into following it would deserve one level of punishment. But a QB who was merely "aware" that his WR's were cheating... would he deserve any punishment at all? These are the things Judge Berman wanted to see in the Wells Report, and wanted to hear as justifications for the NFL's decision to impose any penalty beyond a simple fine. The Opinion indicates that he didn't get the sort of thoughtful analysis that a 4-game suspension would have demanded. Instead, he got "generally aware".

The Opinion does not come out and say that Brady had no knowledge of what was going on. Indeed, it leaves open the possibility that he might have masterminded it. And thus the Court left open the idea that a mere fine (or even a big fine) would have been upheld. What seems to have stuck in the judge's craw – quite properly IMHO – is that Brady's punishment was enhanced far beyond a fine, when any penalty beyond $5,512 should be discounted for all the uncertainty.

Look at it this way. The preponderance of the evidence standard ("more likely than not") is enough to establish liability; i.e., to say "You have to be punished for this Tom, just like people get punished for speeding." Okay, but Brady's obvious response is that mere speeding gets drivers fined, not jailed. Any penalty larger than the specified fine requires a different offense like "public endangerment," which in turn calls for more and more specific proof. In the football world the scheduled fine is the $5,512 fine for a first time equipment-tampering violation. Anything beyond that had to be based on fuzzier things like the "conduct detrimental" policy. Both liability under those added offenses - and the penalties for those violations - should have been adjusted in proportion to any uncertainty about the level of Brady's involvement.

C. Discovery violations

The Court went on at some length to explain specific ways that Brady was denied access to evidence that might have helped him. I didn’t bother to read it all because it’s pretty straightforward stuff. The bigger question is why the NFL would bother to hide something in the first place.

D. The question that no one is asking. Why wasn’t this case remanded?

In this case Judge Berman was essentially acting as an appeals court to review the decision made by Roger Goodell in his capacity as a judge-and-jury-in-one arbitrator. Most successful appeals end with an instruction for the trial court to go back and re-try the case in accordance with the legal instructions provided by the appeals court Opinion. This is called a "remand."

It’s quite rare to see a case where, instead of remanding, the appeals court says, "the appellant was not just right, but was so completely right that there’s no way for the original winner to succeed at all, and the case is therefore dismissed entirely with an opposite result." That’s basically what Judge Berman has done. One has to wonder why?

For example, other than the quibbling over the extent of Brady’s "general knowledge", the Court’s Opinion makes it sound as if a fine would have been perfectly justified for both Brady’s involvement with the initial sin and his failure to cooperate with the investigation. In my experience the Court should have remanded the case for the NFL to determine an appropriate fine under the circumstances. I would also have expected a remand for further inquiry into what specific facts might exist to justify the NFL’s belief that Deflategate is equivalent to to gambling violations, public sex scandals, miscellaneous criminal affairs (wasn't there a player who ran a prostitution ring?), and other offenses that have fallen under the "conduct detrimental" umbrella.

The answer may lie in some part of the arbitration rules that I don’t understand. As I said in the beginning, I’m a lawyer who sues insurance companies and other abusive corporations, not an expert in the field of labor rights. But since we’re speculating here… some person other than your noble and oh-so-understanding author might be tempted to conclude that Judge Berman ruled on everything himself because he found the Commissioner’s conduct and opinions so offensive that he simply didn’t trust the NFL to do justice on a second go-round. You see that occasionally in the Pennsylvania courts, in extraordinary cases where an appeals panel believes the trial judge has gone rogue. A suspicious mind might therefore infer that the judge "ordered" instead of "remanded" because a certain someone thought it fair to compare air-removing needles to the steroid-injecting kind. That, combined with the somewhat shocking disparity between a $5,512 fine and a four game suspension, could have been enough to shock the conscience of the Court.

If it wasn’t clear above, I firmly believe that some kind of "conduct detrimental" policy is essential to the NFL’s continued health and success. I would even argue that it provides a lot of shelter for the players when it’s done properly. Ray Rice would still be in football if he’d been hit with a 4-6 game suspension instead of the 2-game slap on the wrist that caused such public outcry. But just as the game can’t survive without a Commissioner who has the final say, it also requires a Commissioner who acts with wisdom, gentility, and restraint. Either Roger Goodell needs to appoint a Chief Justice to handle player discipline, or the owners need to replace him with someone who can handle both this part of the job and the business side.

Tom Brady might be getting off Scot-free when he should have been heavily fined, but honest fans owe him a debt for pointing out (yet again) that the NFL’s system of fines and suspensions is wildly out of control.