The NFL Should Sort Out Deflategate, Not A Judge

Sean Roman Strockyj Freelance Writer
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Judge Richard Berman’s 40-page decision on NFL Management Counsel v. NFL Players Association gave the commissioner’s office the worst of results. As it stands, the decision completely undermines the theory that both teams in an NFL game should start the game on an equal playing field. However, it encourages bending the rules to gain a competitive advantage if the athletes logically involved can delegate cheating to expendable team staff. This is the critical reason the NFL is obliged to fight on and will likely win aspects of an appeal.

The section of Judge Berman’s decision that has been most widely reported, which concluded that there was inadequate notice to players that deflating footballs could result in a four-game suspension, is the portion most likely to be overturned.

Importantly, Judge Berman imposed himself as commissioner, and in his own wisdom, found the scheme to deflate balls not terribly significant. Judge Berman faulted the commissioner for numerous determinations Goodell made after appointing himself final arbitrator of Deflategate. This included a critique of Goodell’s: (1) basing the length of Tom Brady’s suspension on the type of penalty a player can receive for a first-time performance enhancing drug offense; (2) failure to specify how the punishment was divided between ball tampering and non-cooperation with the investigation; and (3) finding Brady being generally aware of a ball deflation scheme to benefit his grip preference as sufficient to impose a suspension. All of these determinations should be reserved to the man paid an ungodly sum by all NFL teams to preserve the fairness of the game.

This role of maintaining integrity cannot be underestimated and involves the power to discipline prized athletes over the wishes of team ownership. In hiring such a figure, team owners gave away significant power the commissioner, who is independent of each team. Unlike a judge, the designated commissioner is entrenched in the business and customs of the game.  In both Judge Berman’s decision and the Wells report, it appears that Goodell was doing what he is paid his king’s ransom to do — spare no expense to get to the bottom of what happened on January 18, 2015.

Judge Berman initially stated that the investigation found that after the interception in the second quarter by D’Qwell Jackson, the ball was given to the Colts staff, who used a pressure gauge and determined that it was deflated. Officials were alerted and eleven of Patriots game balls were collected and each measured, at halftime, bellow the standard minimum, 12.5 pounds per square inch. Judge Berman then acknowledged that camera footage showed Jim McNally, the Patriots locker room attendant, entering a restroom with bags of game balls on his way to the playing field prior to the start of the game. Judge Berman further noted that the engineering firm Exponent found that the reduction in pressure of the footballs could not be explained by natural conditions. Even the few examples of fact-finding Judge Berman saw fit to cite are enough to permit a commissioner to make the rational determination that the integrity of the conference championship game was undermined through a conspiracy to deflate balls to benefit the player who most often handles them.

Yet the decision either neglected or glossed over an overabundance of factual information in the Wells investigation that was overwhelmingly pejorative to Brady. Critical among such findings were the text messages between McNally and John Jastremski, a team equipment assistant, that glaringly implicate Brady. In those messages, McNally, as early as May 9, 2014, which is before the season, refers to himself as “The Deflator.” A court should have found that such evidence provides the Commissioner the ability to make the inference that the tampering was going on before and through the course of the season.

Further, on October 17, 2014, the day after playing the Jets, McNally texted Jastremski: “Tom sucks … im going make that next ball a f*ckin balloon,” permitting the commissioner to conclude that Brady prefers balls on the opposite side of the spectrum, especially given Brady later conceded his preference for keeping the balls at the lowest possible legal limit. On October 23, 2014, Jastermski continued the theme by noting: “Can’t wait to give you your needle this week :)” to which McNally replies, “F*ck tom…make sure the pump is attached to the needle … f*cking watermelons coming,” and “the only thing deflating sun … is his passing rating.” Again, such evidence should permit the person hired to protect public confidence in the game to impose discipline on the person who benefited from the malfeasance.

Additionally, Goodell highlighted in his arbitration decision, but Judge Berman ignored, what Goodell found to be an unusual pattern of communication between Brady and Jastremski in the days following the initial inquiry into the issue of doctored balls. This included speaking by phone six times in three days following the Colts game, after the two had not communicated for six months. Jastremski even warned Brady, by text, that the team’s equipment manager would be “picking your brain about it … He’s not accusing me, or anyone … trying to get to bottom of it. He knows it’s unrealistic you did it yourself.”

Judge Berman also found it significant that Brady could not be punished because there was no direct evidence linking him to the deflated balls. This was especially kind to Brady since Brady conveniently destroyed his six-month-old phone in early March on the very same day Ted Wells interviewed Brady.  A commissioner should be able to determine the significance of such destruction of evidence.

Interestingly, Judge Berman could have decided this case in favor of Brady on grounds completely within normal judicial province — on procedural grounds. If this occurred, the NFL likely would not have regarded the matter worth appealing. Judge Berman did find that Goodell unfairly denied Brady’s attorneys the opportunity to examine Jeffrey Pash, the NFL executive vice-president and general counsel, at the arbitration hearing. Secondly, Judge Berman found that Goodell improperly denied Brady equal access to investigation files. Such discovery decisions of an arbitrator are discretionary and are usually paid deference to by a court. Nevertheless, this is still an area where courts often focus on when in the rare occasion they find it necessary to overturn an arbitration award.

There were multiple ways of deciding against the NFL without usurping the basic role of the NFL commissioner, which is to impose sanctions when he determines that a player’s actions have undermined the integrity of the league. The preservation of this core function is what the Second Circuit Court of Appeals will likely correct next year.