On May 6th, the NFL released the Wells Report (named for its chief author, Ted Wells of the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP), a summary of the NFL’s investigation into the events popularly known as “Deflategate.” (If you don’t know what “Deflategate” is, stop, take a minute to read this, and then come back.) The findings detailed in the Wells Report were unflattering for the Patriots organization and, somewhat surprisingly, condemnatory of Patriots quarterback Tom Brady. Despite Brady’s insistence that he had “no knowledge of any wrongdoing,”1 the NFL found not only that it was probable that Patriots personnel acted deliberately, but also that it was “more probable than not that Brady was at least generally aware” of the wrongdoing.
As a result of the findings of this investigation, the NFL not only docked the Pats $1 million and two draft picks over the course of the next two years, but they also suspended Brady for the first four games of the 2015 season “for conduct detrimental to the integrity of the NFL.”2 If “more probable than not” that he was “generally aware” seems like an awfully low standard for holding someone culpable, that’s because it is.
The NFL’s investigation was conducted in accordance with the NFL’s Policy on Integrity of the Game & Enforcement of Competitive Rules. Under that policy, the standard of proof required to find a violation is the “preponderance of the evidence” standard, which essentially means, as quoted above, that “as a whole, the fact sought to be proved is more probable than not.”3 You might recognize this as the same burden of persuasion that plaintiffs (or whoever bears the burden of persuasion) are generally subject to in civil cases. If this were a criminal trial, however, like the murder trial of Tom Terrific’s one-time teammate Aaron Hernandez, the burden of proof on the prosecution would be the much-higher standard of proving guilt “beyond a reasonable doubt.”
But this is neither a civil trial nor a criminal trial. It’s discipline handed down under the terms of the NFL’s Collective Bargaining Agreement. Brady does have some options to try to get the ruling reversed and stop the proverbial bleeding. Under Article 46 of the NFL’s Collective Bargaining Agreement, Brady is entitled to appeal the suspension (which he’ll undoubtedly do) within three days of the ruling. Commissioner Roger Goodell can preside over the appeal himself, or appoint someone else to do so, and Brady can be represented by the counsel of his choosing. After the hearing, the officer issues a decision.
Sometimes, the players are successful at this stage of the appeals process. In November, former Ravens running back Ray Rice successfully appealed his indefinite suspension (though he still hasn’t signed with another NFL team). On the other hand, in December, NFL-appointed arbitrator Harold Henderson denied Vikings running back Adrian Peterson’s appeal of his suspension.
Though this arbitration is binding on all parties, if Brady loses his appeal, he can still go to federal court and appeal the arbitration decision. That’s exactly what Adrian Peterson did — successfully — in February 2015. Even still, there are still a lot of teams that want nothing to do with Peterson, and Brady’s reputation has also suffered from the NFL’s ruling. Whether this stigma is warranted is another question entirely, though it does remind me of a law review article I read arguing that reputational harm should be sufficient to trigger procedural due process protection. Of course, the NFL is not the State, but if it’s claiming that its proceedings are just, then conversation about due process flows naturally.
At any rate, even if you’re not a football fan, it should be interesting to keep an eye on these proceedings, if only to try to keep track of the dizzying number of lawyers and decision-makers involved in a case involved some deflated balls.