Opinion

Tom Brady: Just Another Victim Of Overcriminalization

Greg Glod Policy Analyst, Right on Crime
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On Thursday, a Federal Judge in New York overturned a four-game suspension handed down by the NFL against Tom Brady. The NFL’s shaky rationale for suspending Brady was that he was “generally aware” that a New England Patriots staffer deflated football’s under the proper pressure levels. The NFL’s over prosecution of Brady mirrors a major issue that is plaguing our nation’s criminal justice system today.

If you’re unfamiliar with “Deflategate” (how’s that rock you’re living under), it stems from the fairly baseless accusation that Tom Brady was “generally aware” that the New England Patriot’s staffers underinflated footballs during the AFC Championship game last January, so that they would be easier for the players to catch in the frigid temperatures of New England.

In his opinion, Judge Richard Berman meticulously dissects the NFL’s arbitration and discipline policies. Specifically, Judge Berman determined that Brady was not given reasonable notice by the NFL of the possible punishment for having “general awareness” of ball tampering, which the NFL arbitrarily determined would be akin to penalties doled out for steroid usage. Those penalties, unlike for the “general awareness” of other’s misconduct are specifically outlined in the NFL’s Collective Bargaining Agreement.

Judge Berman further opined that Brady was not given reasonable notice that being “generally aware” of another person’s misconduct could result in a suspension based upon the NFL’s catchall provision that forbids any conduct that is “detrimental to the integrity of, or public confidence in, the game of professional football.”

The use of broad language and catchall provisions are not exclusive to the NFL. Our criminal justice system consistently criminalizes activities with vague, overbroad statutes and regulatory offenses that make it impossible in many circumstances for the public to know whether they are breaking the law. Currently, there are over 4,000 federal criminal laws and over 300,000 federal regulatory offenses; many of which carry criminal penalties for basic business activities that do not require any intent by the actor or knowledge of the ramifications of their actions.

A classic example of this is in action is a Supreme Court case decided last February. John Yates, a commercial fisherman in Florida, threw several undersized fish overboard prior to reaching the shore. He was charged under the “destroying tangible objects clause” of the Sarbanes-Oxley Act, a statute enacted to punish white collar criminals for destroying evidence in the face of a federal probe. He spent thirty days in jail.

The Supreme Court overturned the conviction, ruling that the term “tangible objects” could not be broadly used to prosecute Yates for throwing the fish overboard, because the statute was intended to criminalize the alteration of documents in light of the Enron scandal in 2002. In other words, Yates, similar to Brady could not have reasonably known that commercial fishing could be punished due to the broad language in the statute that is routinely placed in the thousands of criminal penalties, statutes, and regulations currently on the books.

Judge Berman in the Brady case put it best: “A player’s right to notice is at the heart of the [Collective Bargaining Agreement] and, for that matter, of our criminal and civil justice systems.” Currently, our government has failed the American public in this regard.

As the voice for criminal justice reform grows louder on Capitol Hill, an examination of our ambiguous, overbroad, and consistently redundant penal code should be examined as well. For Brady, the NFL’s arbitrary code of conduct could have cost the Patriots and Brady a loss or two. However, for millions of Americans, an arbitrary criminal statute could cost you your freedom.

Greg Glod is a Policy Analyst for Right on Crime and the Center for Effective Justice at the Texas Public Policy Foundation