Tom Brady knew that the footballs he used in the first half of the AFC Championship
Game were intentionally deflated in order to give him a competitive advantage, so concluded Ted Wells, the lawyer hired by the NFL to investigate the scandal dubbed “Deflategate.”
As quickly as the league moved to suspend Brady for four games and to fine the New England Patriots a million dollars and eliminate first and fourth round draft choices, Brady apologists, including his agent, Don Yee, and the Patriots’ owner Robert Kraft, called the penalties overblown. Vigorous debate ensued over whether Brady’s conduct was ethically culpable, some even calling it commendable, asking if it was not the duty of a gladiator such as Brady to do whatever he could to help his teammates win.
National pundits quickly weighed in. No less an authority than Morning Joe Host Joe Scarborough called Brady’s suspension extreme, adding, “I just don’t get this.” New Jersey Governor Chris Christie, perhaps hoping to energize support in New England for his presidential bid, currently mired in the single digits, joined a chorus of Bay Staters, labeling the suspension “too harsh.”
Debates over similar questions re-emerge each time an athlete is penalized for misconduct. Was the sanction sufficient? Was it too harsh? How should the fairness of the penalty be assessed? Should our hero (or nemesis) have even been sanctioned at all? Isn’t it the duty of the athlete to try to win at all costs?
Who will hear Brady’s appeal
Interestingly, at least for those of us in the legal profession, it’s the lawyers who usually end up answering these questions. On the face of it, that might seem odd to some. I pondered the “why us?” and “who should?” questions several years ago during late nights poring over evidence the U.S. Anti-Doping Agency had amassed in the case against Lance Armstrong. I have never been in a professional cycling race. Admittedly, and the world is a better place because of it, I have also never even worn Lycra in the Pyrenees. Should, therefore, my lack of experience in cycling have disqualified me from a case in which cyclists were disciplined?
So, the argument goes, why should a lawyer, who did not play football in college or professionally, like NFL Commissioner Roger Goodell, decide whether a future pro football hall of famer, like Tom Brady, broke the rules of football and, if so, how long he should be suspended? Plenty of people connected with the NFL Players Association (NFLPA) and the New England Patriots are complaining that Goodell is the one who will hear Brady’s appeal.
The NFLPA party line is that Goodell is biased and interested in upholding the discipline sought by the league. The short answer to that, however, is that if the NFLPA wanted independent arbitration for such appeals it should have negotiated for it in the most recent collective bargaining agreement. Sure, the best review process consists of independent arbitration such as is used in major league baseball and Olympic sports in drug cases, but the NFL Commissioner has long reviewed discipline cases, and until the NFLPA makes the issue a part of the bargaining process it is disingenuous of them to attack the review process they agreed to.
As for me, I am not perplexed or perturbed that a lawyer like Commissioner Goodell will be making the call on Brady’s sanction length. Lawyers enforce rules. That’s what we are trained for. It’s what we do. That does not mean a lawyer will always make the right decision, but I trust the guy trained in the drafting and application of rules, who understands the value and importance of precedent, who has been schooled in due process, and given an oath to uphold the legal process, to get it right more often than the talk show host, columnist, politician or an ex-baller seeking a post playing career gig.
So, what does getting it right look like in the Deflategate case?
Everybody’s doing it?
Let’s start with the legitimacy of the rule. Plenty have complained that the rule concerning pounds per square inch (psi) in a football is trivial. They liken it to stealing signs or scuffing a baseball. The argument here seems to be that everybody does it, so it’s no big deal. The first problem with that argument, to put it bluntly, is that it reveals a stunted understanding of ethics. The second is that neither is it a strong intellectual rejoinder. Whether “everybody is doing it” does not answer how harmful the conduct is. Nor does it address the obvious fact that for a game such as football to be in any sense fair all athletes must be operating under the same rules. Otherwise, an athlete could obtain an advantage not based on skill or expertise.
Further, the doctoring a baseball analogy also gets the facts wrong. In fact, applying foreign substances to, or scuffing, a baseball is against baseball rules precisely due to the advantage it confers on a pitcher, and a number of big league players have been suspended for violating this rule.
Back to football. It is apparent that in a game where throwing and catching are key and a fumble can be the difference between winning and losing, an advantage in gripping the football is significant. Thus, the psi rule is reasonably related to the game and making sure the game is played on even terms by all. Therefore, the rule satisfies this key test for legitimacy.
The argument has been made that Brady should not be sanctioned because he did not get an advantage using deflated footballs. After all, the contention goes, the Pats won the game 45-7 over the Colts. I do live in Indianapolis where I cheer the blue and white, so you may choose to discount my thinking, however, it seems to me that the logic for this argument is also lacking.
If you have ever stood over a ten foot putt on the last hole with a golf match in the balance you know what pressure is like. Whether that putt came in a high school golf match or was for bragging rights among friends, you likely recall the vaguely uncomfortable sensations: a quickened pulse, tightened forearms, a mind racing with thoughts about the meaning of the moment.
When Tom Brady took the field in the AFC Championship Game in January 2015, he came to the moment, by measure of cumulative on field accomplishment, one of the greatest quarterbacks pro football has known. Yet, past success is a fleeting thing and does not insulate against the worries and insecurities that beset us all.
Could knowledge that the balls he would use were easier to grip have helped Brady’s confidence and diminished pre-game jitters? Could his grip on the ball have prevented a momentum changing and confidence killing fumble early in the game? These are, of course, unanswerable questions and they point to the reality that the full impact of cheating on an athlete’s on field performance is unknowable. Doped athletes make similar arguments when they contend that they still would have won even if they had not doped. Such arguments are self-serving and ill-founded because we simply cannot know what would have happened had the cheating not occurred. Therefore, the claim an athlete would have succeeded anyway should not be accepted as a basis to diminish that athlete’s sanction for cheating.
What about the win at all costs attitude so many athletes seem to have acquired as almost an occupational hazard? If excuses could be made in any sport they might be made for participants in the sport where legendary coach Vince Lombardi is credited with saying “winning is not everything, it’s the only thing.”
However, football’s dependency on maintaining rules which promote a level playing field is no different than for any other sport. Ultimately, loss of public confidence in a sport will cheapen the value of on field performances, lessen the sport’s value in the eyes of fans and drive out sponsors. This is exactly the downward spiral experienced by professional cycling when its leadership allowed a culture of corruption to take root in that sport. Professional soccer may now be undergoing a similar crisis.
As for Brady’s four game suspension, it is interesting that many pundits compared it to the two game sanction originally given to former Baltimore Raven Ray Rice for domestic abuse. These comparisons seem disingenuous. First, the vast majority of the civilized world regarded the initial Rice suspension as insufficient. Second, the persons making the comparison inevitably fail to identify the criteria they would have used to measure the sufficiency of the sanction in either the Rice or Brady cases.
Any effort to identify criteria for evaluating sanction length has been largely lacking in the debate about Deflategate. In my view, sanctions involving athletic eligibility for on-field misconduct (e.g., intentional cheating such as doping or manipulating equipment to get an advantage) should be based on a deterrent model. In other words, sanction length should be geared towards deterring similar conduct in the future. A suspension should be long enough to motivate others not to cheat in this or similar ways in the future. Viewed in this light, a four game period of ineligibility appears to me to be rather towards the low end of the appropriate scale.
One could reasonably conclude that misconduct that might significantly increase the odds of reaching the Super Bowl may not be deterred by a four game suspension even of the team’s star quarterback. In other words, if a player or management knew cheating could get the team to the Super Bowl at the risk of a starter losing four regular season games risk of the possible suspension might not sufficiently outweigh the potential benefit of the misconduct to be an adequate deterrent.
In any case, the debate about deterrence in the NFL context is largely academic because the league has no published sanction lengths for player misconduct of the sort alleged in the Wells Report. If the Brady sanction is upheld it will act as a precedent and should have some value in deterring cheating efforts in the future. However, the lack of defined sanctions for on-field cheating other than drug offenses is a weakness in the NFL’s policies.
In Olympic sport all competitive results obtained through the cheating are invalidated. For instance, when it was established that Marion Jones doped in connection with Olympic Games she was required to return her Olympic medals. More recently, Tyson Gay’s teammates on the 2012 Olympic relay team were asked by the IOC to return their medals.
Curiously absent from the NFL’s Deflategate sanctioning decision is discussion about invalidating competitive results obtained through cheating. Had the Patriots been required to forfeit their 2014 AFC Championship and/or the 2014 Super Bowl Championship as a further consequence of Deflategate one supposes that the likelihood of Patriot recidivism would have been reduced even further.
Indeed, Deflategate itself may be some evidence that prior sanctions for cheating involving only a fine and the loss of draft choices have been insufficient. In 2007 the Patriots were fined and lost a draft choice for stealing signals through the use of video surveillance in what was dubbed “Spygate.” The fact that the Pats are now involved in another apparent cheating episode raises the question of whether the league’s prior discipline was sufficient to adequately deter future misconduct.
Thus, while many have complained that the discipline proposed for Tom Brady if he is found to have cheated is too great. I would argue that it is not enough.
The Bock’s Score – Bill Bock is the General Counsel for the U.S. Anti-Doping Agency, click The Bock’s Score to read prior articles by Bill.