Tuesday, August 11, 2015

The Rhetoric (to Date) of Deflategate

Those who read this blog or follow me on Twitter know I love sports and, especially, the intersection between legal writing and sports (yes—it exists)!

Over the last few weeks, I've become interested in the rhetoric of Deflategate, the controversy surrounding the deflation of footballs during last season's AFC Championship game.


After the NFL discovered the deflated footballs, it hired lawyer Ted Wells to investigate and report his findings. In his report, Wells concluded that Patriots employees tampered with game balls after those balls had been checked by referees and that Brady was at least generally aware of the scheme to deflate the footballs.

Acting of behalf of NFL Commissioner Roger Goodell, Troy
Troy Vicent
courtesy of NFL Communications
Vincent, the Executive Vice President of Football Operations, suspended Brady for four games, to be served at the fast-approaching start of the 2015-2016 season. Brady appealed that suspension, but under the Collective Bargaining Agreement that governs disputes between players and the League, Goodell served as arbitrator of the appeal. Goodell upheld the four-game suspension, finding that Brady “induced” the ball tampering and attempted to hide his conduct by refusing to turn over his cell phone or make text messages between himself and Patriots employees available to Wells and his investigators.

Since Goodell issued the arbitration award several weeks ago, the parties have leveled some inflammatory accusations at each other. Brady’s agent called the discipline “ridiculous,” the Wells report a “frail exercise in fact-finding and logic,” and chastised the NFL for its “well-documented history of making poor disciplinary decisions.”

Roger Goodell
The NFL instituted suit first in the Southern District of New York to have Goodell’s arbitration award affirmed, then Brady filed an action in the District of Minnesota to have the award vacated. The actions were consolidated and will be heard by Judge Richard Berman of the Southern District of New York, who has instructed the parties to “tone down” their rhetoric. They seem to have listened if their latest filings in the litigation are any indication. Though some of the words and tone in the NFL and Brady filings are sharp, they aren’t nearly as pointed as the prior barbs the parties traded.

Below is a summary of the more interesting arguments and language in Brady’s brief, filed in advance of the August 19, 2015 oral argument.

Law of the Shop

The core of Brady’s brief is his “law-of-the-shop” argument in which he focuses on the overturned arbitration awards in the Adrian Peterson and Ray Rice cases. According to Brady, the essence of the CBA includes the express terms of the agreement, prior arbitration awards (akin to case law), and the custom and practices of the parties. Brady argues that under the CBA he cannot be disciplined for conduct that he did not know was prohibited or punishable. To advance this notice argument, Brady relies on the “precedent” of the Peterson and Rice cases.

Tom Brady
Courtesy of www.businessinsider.com
Both Judge Doty (who presided over the Adrian Peterson appeal) and former United States District Court Judge Barbara S. Jones (who served as the arbitrator in the Ray Rice case) found that the CBA does not permit retroactive application of new disciplinary policies without notice. Brady effectively uses select language from the those cases to argue Goodell has done the same thing to Brady in this case that he did to Peterson and Rice in prior cases: handed-down punishments “arbitrarily” in response to “public criticism” that exceeded the punishments the players were notified they might receive.

I like Brady’s reliance on this “prior precedent” to highlight what many see as Goodell’s make-up-the-rules-as-you-go approach to player discipline. Not only does that precedent provide good language that supports Brady’s arguments, it reminds the reader of Goodell’s actual and perceived failures in meting out appropriate discipline consistent with the CBA.

The No-Other-Player Argument

Brady also spends considerable space outlining the “unprecedented” nature of his suspension, using phrases such as “no other player” and “no player in NFL history” to effectively emphasize the ways the NFL singled-out Brady for punishment.

For example, Brady argues that “no player in NFL history has been disciplined” for being generally aware of another person or player’s misconduct—not even the players who knew about Bountygate (involving the New Orleans Saints) or the Miami Dolphins bullying scandal that resulted in the suspension of Richie Incognito.

Further, Brady notes, “[n]o player suspension in NFL history has been sustained for an alleged failure to cooperate with—or even allegedly obstructing—an NFL investigation.” Brady makes the “unprecedented” argument again later in noting that he was initially disciplined pursuant to the League’s Competitive Integrity Policy which, according to Brady, is not applicable to players. Brady supports this argument by noting that he is “the first player ever disciplined” under that policy. And Brady further argues that the only other investigations of ball tampering in recent years “resulted in no player investigation, much less player discipline.”

No Protocols

Brady also challenges the premise of the suspension itself; that is the League’s finding that game balls were purposely deflated. Brady argues that prior to the publication of the Wells report, “neither the NFL nor its referees had any appreciation of the Ideal Gas Law and the fact that some deflation was naturally expected; no set procedures existed for testing balls at halftime or after the game; and, as a result, the referees did not record critical information about the sequence and timing of the measurements, temperature, wetness, or which of two gauges was used.” 

Thus, according to Brady, the arbitration award cannot be fair where the League cannot even prove the balls were intentionally deflated because “it had no protocols for collecting the information essential to determining what actually caused the deflation reflected in the halftime measurements.” I like this argument very much as I see the facts as compelling—the League suspended Brady based on what does appear to be some suspect “science.”

I think Brady’s counsel should have hammered the NFL with some stronger language by, for example:

--calling the NFL’s finding or process “junk science”

--noting the “complete lack of protocols” (not just “no protocols”) for determining if balls were intentionally deflated

--highlighting that the people responsible for ensuring balls were not tampered with (referees) had no idea that deflation could even occur naturally and absolutely no understanding of how to determine if ball deflation resulted from environmental factors

The NFL's brief contrasts starkly with Brady's. On Friday I’ll post my writing-related thoughts on the NFL's filing.

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