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Deflategate Punishment is Dire News for All NFL Teams

By CJ Oliver

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The Deflategate controversy was supposed to be settled by the release of independent investigator Ted Wells’ report last week, but instead it’s only intensified. The report’s findings, or lack thereof, will and should be subject to scrutiny from the media, fans, teams and the league office.

Instead of measured scrutiny though, we’ve already received the league’s knee-jerk reaction in the form of an unprecedented set of punishments levied on New England Patriots quarterback Tom Brady and the team itself. In case you’ve missed the details, that punishment is a four game suspension for Brady, and a $1 million fine plus loss of the 2016 1st round draft pick and 2017 4th round draft pick for the Patriots.

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I’m not going to directly debate the merits or accuracy of the report here (the science is laughable), but what I will debate is the merits of using the results of the report to determine the league’s hammer on the Patriots for the issue. The integrity of the entire investigation-to-punishment process.

Since CBS News reported that the league based the punishment on integrity violations, this should be simple, right?

The NFL does not have a long history of using outside investigators to research issues within the organization. The only references I could find to doing so begins with the Bullygate case in 2013 (which Ted Wells also handled), then expanded to the Ray Rice case in 2014 and now Deflategate in 2015. All of these were under NFL Commissioner Roger Goodell’s directive.

Hiring an outside investigator is a common practice for companies seeking to avoid workplace-issue-based lawsuits. However, usually that investigator isn’t on the company’s payroll for other services. This would be a direct conflict of interest. Since the NFL isn’t being forced to perform the investigation, they can choose the person who performs it. In all three cases, the investigator who wrote the report had previous business ties to the league.

That means there’s some financial incentive to conform the report’s findings to whatever the league desires, and no accountability to any other higher power such as a bureau of the US government, like there is in actual lawsuits.

Wells is feeling the pressure too. In an unusual move, he held a press conference to defend the report, coming off as defensive and whiny. CBS/AP reported him as stating, “his findings would have been strong enough to convince a jury under the ‘preponderance of evidence’ standard, which is used in many civil cases.”

“The NFL said Brady, who is arguably the NFL’s biggest star, damaged the league’s integrity.” – CBS News

Yet Wells still used the phrase “more probable than not” rather than “the evidence shows directly that” Tom Brady ordered members of the Patriots equipment team to deflate the footballs. Although this is a valid legal term that means the “preponderance of evidence” standard has been met, the relative vagueness of the term also absolutely leaves the door open for the league to have a choice in how it interpreted the results.

If that’s not at least troubling, how about the fact that the league used the report as the sole and singular basis for it’s Deflategate punishment decisions? That is profoundly alarming.

Why?

Football has no comprehensive code of conduct with pre-determined, rationally negotiated sets of consequences that owners of teams and players have agreed to be bound by. Instead, football has a personal conduct policy that covers violent crime and substance abuse. That’s it. There’s no formal standards for cheating or other potential offenses. Even the personal conduct policy leaves an open door for “league discretion”, which has been exercised in every issue that’s arisen since the new policy went into effect.

Because there’s no standard, an investigator’s report can’t be fit into a fair and impartial system of punishment. Thus, that report should never solely dictate the punishment. That would be like basing a civil or criminal trial on the oral and closing arguments given by the lawyers alone.

Additionally, you’re arguing in front of a judge who has no integrity oath to uphold.

Apr 23, 2015; Washington, DC, USA; New England Patriots head coach Bill Belichick (L) gestures to President Barack Obama (R) after a joke about “DeflateGate” during a ceremony honoring the Super Bowl Champion New England Patriots on the South Lawn at the White House. Mandatory Credit: Geoff Burke-USA TODAY Sports

Under the current system, no matter what an investigation turns up, there is no promise or onus on the part of the league to do anything about it. Nor is there any sort of check on the league to prevent cruel and unusual punishment – something so important in criminal cases that it’s protected by the US Constitution.

The NFL had to redefine the personal conduct policy in the wake of the Ray Rice scandal because it wasn’t clear what the punishment should have been for his crime. Why didn’t this issue spur a complete overhaul of the entire performance, personal and PED policies to cover all aspects of what the league doesn’t allow?

The answer to that is one of two options.

Option 1: The Conspiracy Theory

The league office wants complete discretionary power, and they’re capitalizing on an old standard in the history of crime and punishment – the fear of the unknown. In this scenario, what might happen as a result of an infraction is a terrifying mystery, and that in itself is supposed to be a deterrent.

If this is true, the league needs to learn that this type of deterrent doesn’t work as well as defined punishments do. Michel Foucault is the definitive expert on the changing standards for crime, and his research clearly showed that governments throughout history moved towards so-called “secret punishments” and then quickly away from them, because of their ineffectiveness. Only governing bodies with a vested interest in ruling their subjects through terror stick with this sort of penal program.

Based on the draconian punishment levied on the New England Patriots, despite the organization as a whole being exonerated in the Wells report, there’s a case to be made for the league ruling via fear. Unfortunately, there’s no incentive to do otherwise.

This is the doldrums of the year for football news, yet Deflategate is a ratings blockbuster. Everyone in sports media is talking about it, to the detriment of both hockey and basketball playoffs and the opening of the baseball season.

There’s no evidence that shows the recent highly publicized scandals, from Spygate to Bountygate to Bullygate, Ray Rice and Adrian Peterson, have had any effect on the league’s popularity. It’s a real life soap opera played out with the subplot of a sporting event.

Damage Tom Brady’s reputation? Just think of the ratings, as people will want to tune it to see if the Pittsburgh Steelers can demolish Jimmy Garoppolo under center on opening night. And when Brady returns, everyone will want to see if he’s “still got it” sans floppy footballs.

Option 2: The Public Perception-o-meter

Maybe the truth is that the league is so terrified of experiencing the backlash they received over the Ray Rice under-penalization that they’ve determined over-penalization is the way to go. Levy a penalty with the expectation that it will be appealed, gauge public reaction to the extent of the penalty and go from there.

While there’s no denying the league loves headlines, the kind of scrutiny invited by the details of Ray Rice’s assault incident opened up a can of worms that resulted in the formation of a new committee within the NFL. This brought women into the inner sanctum. I definitely think there was some resistance to a larger female presence in football, despite the marketing emphasis on female fans over the last decade. I mean, it’s 2015 and cheerleaders still have to sue for a decent wage?

The NFL deserves to be called out on one particularly ridiculous and disingenuous reason they cite for the penalty: protecting the league’s “integrity.” – Jeb Lund, The Guardian

Anything that affects the bottom line drives policy, so it’s not inconceivable that public outcry is now in the driver’s seat.

Either of these lines of reasoning should terrify you as a fan. Because there’s no accountability for the league and no guarantee as to where they will stop. Suppose Jerry Jones, owner of the Dallas Cowboys, is accused of tampering with Adrian Peterson as a result of his “would be willing to trade a 1st round 2016 draft pick if the deal was right” comment? Jerry Jones owns a team notorious for bringing shame on the league; they have plenty of “prior offenses”. Should that comment merit a $1 million fine and loss of said draft pick?

What if all the people who hate the Cowboys think so?

If a player hits a pedestrian a la Daunte Stallworth, or kills a teammate during a DUI like Josh Brent, or shoots himself in the leg at a nightclub like Plaxico Burress, what’s the punishment?

The reasoning behind the severity of the punishment levied for Deflategate is supposed to be integrity. But what integrity is there in a system with no real rules? It’s whatever Roger Goodell decides it is – and recent history shows that there’s no where to go but up on the severity of punishments.

Jeb Lund of The Guardian was one of the others who weighed in on this issue, “The NFL deserves to be called out on one particularly ridiculous and disingenuous reason they cite for the penalty: protecting the league’s ‘integrity,’… Goodell must be able to command compliance at all times — even if it means punishing Brady for failing to volunteer personal information he had no obligation to disclose in order to aid a circumstantial case against him — otherwise the bubble could burst, and law, context and perspective might come rushing in.”

If there isn’t a push now for a codified and comprehensive list of crimes with corresponding consequences, the severity of the league’s “justice” is only going to increase. And it will increase disproportionately for things like letting the air out of footballs, when compared with much more serious matters like child abuse and domestic violence.

And it might be your team and your star player next.

Next: Wells Report: Facts and Flaws

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