Author: Gabriel Fletcher, Associate Member, University of Cincinnati Law Review
Under the Collective Bargaining Agreement (CBA) of 2011, the National Football League (NFL) Commissioner, Roger Goodell, has the power to punish players for conduct detrimental to the integrity of the game of professional football. The NFL accused Tom Brady, the quarterback of the New England Patriots, of being generally aware that his team’s equipment staff engaged in deflating footballs below the NFL’s specified football inflation range. The deflated footballs were said to give Brady and the Patriots a competitive advantage because deflated footballs are “easier to catch, grip, and throw;” particularly in inclement weather. As a result, Brady was suspended by the Commissioner for the first four games of the 2015-2016 NFL regular season. The United States District Court for the Southern District of New York ruled in Brady’s favor and vacated the arbitration award handed down by the Commissioner. The issue with the court’s decision is that it largely ignores and undermines the bargained for agreement between the NFL and the National Football League Players Association (NFLPA). If the NFLPA believes that Goodell has too much power then they should address that concern in the next CBA.
The Commissioner’s Purpose and The NFLPA
The NFL functions as a revenue sharing entity, which evenly splits earnings from television deals and other sources among all thirty-two teams. On January 17, 1941, the NFL franchise owners held a vote to amend the existing constitution for the league. The objective was to pull all of the “professional football leagues under the authority of one commissioner.” NFL Commissioners, past and present, have embraced the responsibility to address concerns on and off the field. According to the Constitution and Bylaws of the National Football League, the Commissioner has the responsibility to help resolve disputes between parties affiliated with the NFL and to punish any party or organization that is guilty of conduct detrimental to the welfare of the NFL. Commissioner Goodell’s primary purpose as Commissioner is to protect the integrity of the game of football. In other words, the Commissioner works to prevent and appropriately punish any “conduct detrimental to the league and professional football that would result from impairment of public confidence in the honest and orderly conduct of NFL games or the integrity and good character of NFL players.” Goodell’s four game suspension of Tom Brady resulted from Brady’s violation of this provision as well as his refusal to cooperate with the NFL’s investigation into the deflated footballs. Shortly thereafter, Brady contested the Commissioner’s decision, taking his suspension from the NFL to the federal courts.
The NFLPA was created in 1956 to represent NFL players and conduct contract negotiations on their behalf. Thus far, the NFLPA has bargained with the NFL to produce a total of seven CBAs. The relevant portion of the CBA states that the Commissioner may take action against a player for conduct detrimental to the integrity of the game of football.
Deflategate: The Curious Case of Deflated Footballs
During the AFC championship match between the Indianapolis Colts (Colts) and the Patriots in January 2015, a Colts player intercepted a pass thrown by Tom Brady. The intercepted ball was subsequently passed to Colts equipment personnel, and after an examination, the Colts equipment staff determined the ball to be inflated to approximately 11 psi, which is below the 12.5-13.5 psi range outlined in the 2014 NFL Official Playing Rules (Playing Rules). The NFL gathered and tested twelve Patriots game balls and concluded that every ball tested measured below the minimum 12.5 psi mark.
The NFL retained Paul, Weiss, Rifkind, Wharton & Garrison LLP (Paul Weiss) to conduct an independent investigation into why the psi of the footballs was out of compliance. Theodore Wells, an attorney for Paul Weiss, operated as the lead investigator. The investigation was to center on the NFL Policy on Integrity of the Game & Enforcement of Competitive Rules (Competitive Integrity Policy). The resulting report—known generally as “the Wells Report”—alleged that “it was more probable than not that New England Patriots personnel participated in violations of the Playing Rules and were involved in a deliberate effort to circumvent the rules,” furthermore the Wells Report stated that “it was more probable than not that Brady was at least ’generally aware’ of the inappropriate activities of [equipment personnel] involving the release of air from Patriots game balls.” Commissioner Goodell punished the Patriots and Tom Brady based on the findings of the Wells Report. Additionally, the Wells Report noted Brady’s failure to cooperate in the investigation through destruction of evidence when he destroyed his cellphone, which potentially contained evidence of his communications with equipment personnel. Brady appealed and Commissioner Goodell appointed himself as hearing officer pursuant to his Article 46 authority. Goodell upheld Brady’s four game suspension and Brady’s legal team filed suit in Minnesota, but was preempted by the NFL filing suit in New York because the NFL wanted a more favorable jurisdiction to hear the case.
The NFLPA and their counsel asserted several claims, but one will impact the CBA the most. The NFLPA argued that Brady had not received advance notice of potential discipline. The court agreed with the NFLPA’s argument and reasoned that Brady received no notice since the Competitive Integrity Policy, on which the Wells Report is based, is only received by “Chief Executives, Club Presidents, General Managers, and Head Coaches,” but not players. Commissioner Goodell contended that Brady’s discipline grew from the general CBA policy prohibiting players from participating in conduct that is “detrimental to the integrity of, or public confidence in, the game of professional football,” but the court rejected this argument. The court found that the conduct detrimental to the integrity of the game policy was too broad to be relied upon in this situation. The court also rejected the Commissioner’s argument that Brady’s attempt to gain a competitive advantage through under inflated footballs was analogous to a player trying to gain a competitive advantage through performance enhancing drug use.
Why the Court Is Wrong
The court found that Brady had not received advance notice that he could be disciplined for being “generally aware” of a scheme to deflate footballs. The Competitive Integrity Policy can be found in the standard form NFL contract, and in various other documents provided to the players. The conduct detrimental to the integrity of the game policy is available to NFL players in several places, most notably in the standard form NFL contract. The player contract alone should have been more than enough to serve as notice to Brady that anyone found or thought to be participating in a scheme to gain a competitive advantage could be subject to discipline by the Commissioner, which includes suspension. The Competitive Integrity Policy language can be found in the standard player contract, the operations manual, the personal conduct policy, and the constitution and bylaws of the NFL. The court should have found that Brady had constructive notice. Ignorance of a law or rule should not be a defense for an infraction on or off the field. In United States v. Freed, the Supreme Court concluded that specific intent or knowledge was not necessarily needed for liability to apply. Brady’s argument that he should not be punished because of lack of notice of discipline or because he had no specific knowledge of the scheme should have been ignored by the court. As the quarterback, Brady handles the football on every offensive play, which means he should have reasonably been aware that the footballs were under inflated.
The court also ignored Brady’s spoliation of evidence. He destroyed his cellphone on the day he was to be interviewed by the investigator. Similar to Shaffer v. RWP Group, Inc., the court should have drawn an adverse inference against Brady for destroying his cellphone and potential evidence in such a suspicious manner that appeared to be in bad faith. The court also deemed under inflating footballs to be different from performance enhancing drug use, but the comparison is with the competitive advantage obtained and not the infraction.
An NFL player should reasonably know that he could face punishment from the Commissioner for engaging in a scheme or generally being aware of a scheme to gain a competitive advantage that may negatively impact the “integrity of, or public confidence in,” the NFL. As a media and consumer driven profession, the NFL would suffer greatly if the public lost confidence in the legitimacy of the competition on the field.
The court’s decision will most likely impact future CBAs in a couple ways. First, the Commissioner’s power will have limits placed on it. The court did not address whether Goodell had too much power, instead the court addressed the process of punishment. But many players and even the Commissioner have publicly stated it may be time for a change. Second, the NFL will have to develop a method to provide players with notice that they can be punished for violations to the integrity policy that involve competitive advantages. As it presently stands, a player utilizing a competitive advantage during play would be eligible to state that he had no advanced notice of punishment for his newly created method to cheat.
If an NFL player discovers a new way to impugn the integrity of the game through deceit then the Commissioner should be afforded the opportunity to deal with the player without having to address whether the specified conduct is outlined in the CBA. The NFL is a consumer driven profession. In light of that fact, the Commissioner should have great latitude in upholding the integrity of the game. If the Commissioner is not provided with that latitude, then public confidence in the game could wane and greatly impact revenue in a negative manner. If the NFLPA believes that Goodell has too much power related to player discipline, under the integrity policy, then the NFLPA should be forced to correct that issue in the next CBA. As it stands, the NFL and the NFLPA bargained to allow the Commissioner to have the disciplinary authority and discretion to discipline players that engage in conduct detrimental to the integrity of the game; yet the court did not interpret the current CBA’s article 46 as it appears to have been intended.
 Tony Manfred, Why Using Deflated Footballs Gave The Patriots A Huge Advantage, Business Insider (Jan. 21, 2015, 10:11 AM), http://www.businessinsider.com/advantage-of-deflated-footballs-2015-1.
 Gregg Rosenthal, Tom Brady suspended 4 games, plans to appeal, NFL (May 11, 2015), http://www.nfl.com/news/story/0ap3000000492185/article/tom-brady-suspended-4-games-plans-to-appeal.
 Barry Petchesky, The NFL Split $7.2 Billion In Revenue Sharing Last Year, Deadspin (Jul. 21, 2015, 8:58AM), http://deadspin.com/the-nfl-split-7-2-billion-in-revenue-sharing-last-year-1719217695
 History of the NFL Commissioner, Project Gutenberg Self-Publishing Press (Sept. 15, 2015), http://self.gutenberg.org/articles/history_of_the_nfl_commissioner. During the time period there were several professional football leagues.
 Id. NFL Commissioners have had to address issues relating to on-field conduct such as performance enhancing drug use by players, and they have had to address issues such as Presidential assassinations (JFK) and terrorist attacks (9-11).
 Const. and Bylaws of the Nat’l Football League, art. 8, (rev. 2006), available at
http://www.nfl.com/static/content/public/static/html/careers/pdf/co_.pdf. (Under the League Constitution, the Commissioner is authorized to take action that is deemed necessary and proper in the best interests of Professional football to protect the integrity of the game and punish any guilty party that is found to be engaged in conduct detrimental to the League.
 Kevin Patra, Goodell: Integrity of game is most important thing, NFL (Aug. 8, 2015, 3:26 PM), http://www.nfl.com/news/story/0ap3000000507859/article/goodell-integrity-of-game-is-most-important-thing.
 Collective Bargaining Agreement between the NFL Management Council and the NFL Players Association, app. A § 15 (August 4, 2011), available at https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf.
 Around The NFL Staff, Tom Brady suspension timeline, NFL (Sept. 3, 2015, 10:36 AM), Available at http://www.nfl.com/news/story/0ap3000000492189/article/tom-brady-suspension-timeline.
 Supra note 3.
 Collective Bargaining Agreement Between the NFL Management Council and the NFL Players Association, art. 46, (August 4, 2011), available at https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf .
 Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, Case No. 15 Civ. 5916 (RMB) (JCF), 2015 WL 5148739 1, 2 (S.D.N.Y. 2015).
 Id. at 2. Paul, Weiss, Rifikind, Wharton & Garrison LLP also served as counsel to the NFL. The court questioned the validity of the independent investigation because of Paul Weiss’s double role, which seemed inconsistent to the court.
 Id.at 1.
 Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, Case No. 15 Civ. 5916 (RMB) (JCF), 2015 WL 5148739 1, 2 (S.D.N.Y. 2015); see also
“The following updated memorandum was sent on February 11, 2014 to Chief Executives, Club Presidents, General Managers, and Head Coaches from Commissioner Goodell regarding the Policy on Integrity of the Game & Enforcement of Competitive Rules … Actual or suspected violations will be thoroughly and promptly investigated. Any club identifying a violation is required promptly to report the violation, and give its full support and cooperation in any investigation. Failure to cooperate in an investigation shall be considered conduct detrimental to the League and will subject the offending club and responsible individual(s) to appropriate discipline [emphasis added].” see also Game Operations Policy Manual for Member Clubs (2014 Edition), available at http://operations.nfl.com/images/content/rules/2014rulebook.pdf.
 Id. at 3.
 Id. at 4; see also Investigative report concerning footballs used during the AFC Championship game on Jan. 18,2015, available at https://nfllabor.files.wordpress.com/2015/05/investigative-and-expert-reports-re-footballs-used-during-afc-championsh.pdf. The court also noted that only the kicking ball had showed no evidence of wrongdoing.
 Id. at 8.
 Id. at 5.
 The NFLPA represented Tom Brady in the suit.
Mike Florio, NFLPA must respond to NFL lawsuit by August 13, NBC Sports (Jul. 29, 2015, 3:23 PM), http://profootballtalk.nbcsports.com/2015/07/29/nflpa-must-respond-to-nfl-lawsuit-by-august-13/.
 Nat’l Football League Mgmt. Council, No. 15 Civ. 5916 (RMB) (JCF), 2015 WL 5148739 at 8 (S.D.N.Y. 2015).
 Id. at 16.
 Id. at 13.
 Supra note 8.
 Collective Bargaining Agreement between the NFL Mgmt. Council and the NFL Players Ass’n, app. A § 15 (August 4, 2011), available at https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf.
 Constructive notice is a fiction that a reasonable person received notice even though actual notice was not delivered.
 401 U.S. 601 (1971) (stating his is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act). Comparatively, one would hardly be surprised to learn that gaining a competitive advantage from deflated footballs is not an innocent act.
 169 F.R.D. 19, 28 (E.D.N.Y. 1996) (stating that an adverse inference charge serves the dual purposes of remediation and punishment. First, it seeks to put the non-spoliator in a position similar to where it would have been but for the destruction of evidence. Second, it carries a punitive effect; “ ‘the law, in hatred of the spoiler, baffles the destroyer, and thwarts his iniquitous purpose, by indulging a presumption which supplies the lost proof, and thus defeats the wrongdoer by the very means he had so confidentially employed to perpetrate the wrong.’ ” (quoting Pomeroy v. Benton, 77 Mo. 64, 86 (1882))).
 Mark Maske, NFL owners to discuss changing Roger Goodell’s role in disciplinary process, The Washington Post (Sept. 4, 2015), https://www.washingtonpost.com/news/sports/wp/2015/09/04/nfl-owners-to-discuss-changing-roger-goodells-role-in-disciplinary-process/.