On September 3 of 2015, a decision was issued by the U.S. District Court for the Southern District of New York. The decision was widely viewed by football fans as being one that centered around deflated footballs, a potential suspension for one of the game’s greatest quarterbacks, and this season’s prospects for one of the most polarizing franchises in America’s most popular sport.
But, in reality, the decision was about personnel law. More specifically, it was about an employee’s right to receive fair notice prior to discipline and to be free from inconsistently harsh discipline.
The fundamental issues upon which the court ruled are just as applicable to a dispute over a police officer’s discipline imposed by a Police Chief as they are to a Super Bowl-winning quarterback’s discipline imposed by the commissioner of the NFL. This is particularly true of agency leaders operating under agreements requiring binding arbitration, or whose decisions are subject to review by a merit board or personnel review board or state court, or whose disciplinary decisions could appear inconsistent and thereby discriminatory based on race, gender, religion, military status or any other protected class status under Federal and State law.
While this article will not discuss all of the elements involved in this case, there are two key elements which will be briefly examined that are directly applicable to public safety leaders seeking to hold employees accountable for misconduct in a way that is legally defensible: (1) Inconsistent application of discipline, and (2) Lack of notice of possible discipline.
Allegations of Misconduct
Following the New England Patriots victory over the Indianapolis Colts in the AFC Championship game on January 18, 2015, allegations emerged that the Patriots offense was using under-inflated footballs during the course of the first half of that game and that the result was an unfair advantage favoring the Patriots. Furthermore, it was alleged that this under-inflation was purposefully undertaken in violation of NFL rules.
Almost immediately, the NFL launched an investigation into what has now been famously termed “Deflatgate”. At the conclusion of this investigation a “disciplinary decision” letter from the NFL was given to Brady, suspending him for the first 4 games of the upcoming season. The discipline was “imposed…[due to Brady’s] involvement in the use of under-inflated footballs by the Patriots in this year’s AFC Championship Game…[which] represents a violation of the longstanding playing rules developed to promote fairness in the game.” [i]
More specifically, Brady’s suspension was levied because “there is substantial and credible evidence to conclude that you were at least generally aware of the actions of the Patriots’ employees involved in the deflation of the footballs…[m]oreover…[for] your failure to cooperate fully and candidly with the investigation.” [ii] The letter contained the assertion that “[y]our actions…clearly constitute conduct detrimental to the integrity of and public confidence in the game of professional football.” [iii] It is noteworthy that the NFL Player Contract language pertaining to conduct detrimental to the integrity of the game lays out specific examples of conduct including accepting bribes to fix games, betting on an NFL game and providing other players with performance-enhancing drugs—in the court’s view, none of these illustrations appear to be particularly similar to the deflating of footballs.
Inconsistent Application of Discipline
When considering a proposed disciplinary action, leaders of any organization would be well-served to ask themselves: have we ever given this type of discipline for this type of conduct? If not, is this conduct something that is substantively different from anything we have dealt with in the past? If the answer to both of these questions is “no”, then there may be an inconsistency in discipline. This inconsistency can undermine the integrity of the disciplinary system and, as in the case of Brady, can result in the discipline itself ultimately being overturned.
In Brady’s case, the court refused to accept the rationale given by NFL Commissioner Roger Goodell, who stated at the arbitration stage, “I am very aware of, and believe in the need for consistency in discipline for similarly situated players…the closest parallel of which I am aware is the collectively bargained discipline imposed for a first violation of the policy governing performance enhancing drugs…” [iv] The court determined that the comparison between the allegations against Brady and a willful violation of the NFL’s steroid policy was unreasonable and, therefore, asserted that “Brady…had no notice that his discipline would be equivalent of the discipline imposed upon a player who used performance enhancing drugs.” [v]
The court plainly stated that, with respect to allegations of general awareness of wrongdoing and failure to cooperate with an investigation, “it does not appear that the NFL has ever, prior to this case, sought to punish players for such an alleged violation.” [vi]
Depending on one’s definition, NFL players routinely engage in gamesmanship that could easily cross over into the realm of cheating or undermining the integrity of the game. Wide receivers try to “sell” an incomplete pass as a completion. Punters hurl themselves into defensive players in hopes of getting a roughing the kicker call. During an offensive drive late in a game, defensive players are known to fake an injury in order to stop the drive and allow their team to regroup. The list goes on. Although the court did not find it necessary to delve into the question of inconsistent discipline to such an extent, it seems fair to assume that these examples are the kind of instances which undermine the NFL’s position. These are all examples of instances in which the integrity of the game was arguably undermined and other players presumably had generally awareness of their teammates’ efforts to game the system. And yet, these instances did not tend to result in significant disciplinary action by the NFL.
Lack of Notice of Possible Discipline
In addition to issues of consistency, when considering a proposed disciplinary action, leaders of any organization should ask themselves: was this employee in a position where they knew or should have known that the discipline we are considering now could come as a result of their misconduct? As in the case of consistency issues, the inability to answer “yes” to this fundamental question can create a substantial risk, not only of internal unfairness, but of legal liability ramifications.
The issue of lack of notice is intertwined with the issue of inconsistent discipline. Due, in part, to the fact that past incidents of general awareness and/or failure to cooperate with an investigation had not resulted in significant discipline by the NFL, the notice to Brady that such discipline could result was lacking.
The court found that Brady’s “disciplinary decision” letter asserted penalties for alleged violations that were without precedent or forewarning. “Brady had no notice that he could receive a four-game suspension for general awareness…and non-cooperation with the ensuing Investigation.” [vii] The apparent inability of the NFL to point out past incidents of significant discipline based on “general awareness” or wrongdoing or failure to cooperate with an investigation was of particular concern to the court.
“The Court is unable to perceive ‘notice’ of discipline, or any comparability between a violation of the Steroid Policy and a ‘general awareness’ of the inappropriate activities of others…and non-cooperation in a football deflation investigation”. [viii]
Ultimately, the court never answered the questions that grabbed most of the public’s attention. Did Brady know about the footballs being deflated? Did Brady instruct others to deflate the footballs? Did Brady cheat? The court never answered these questions because the initial legal analysis was limited to issues of fair notice and consistency of discipline before these other questions would be addressed. And because notice and consistency of discipline were found to be lacking, the court did not delve into a lengthy analysis of air pressure or unfair advantage in a football game.
Leaders in public safety agencies are often tempted to view an employee’s misconduct in a vacuum—because the employee engaged in activity X, they should be suspended without pay for a period of 14 days. While their assertion may be completely reasonable on its face, and a disciplinary decision may seem a moral imperative in light of the circumstances, this does not necessarily mean that the decision will not be ultimately overturned or otherwise result in liability exposure. If a similarly-situated officer was not similarly disciplined for engaging in activity X at some point in the past, the discipline may be ultimately deemed unreasonable as it creates the appearance of discriminatory discipline. Furthermore, the fact that past incidents of similar or even more egregious conduct were not subject to significant discipline tends to indicate that the officer was not on notice of the possible disciplinary ramifications of his or her actions.
In the end, Brady’s suspension was not overturned because he was deemed innocent nor was it overturned because his alleged infraction was deemed inconsequential. It was overturned because the court determined that the NFL did not offer fair notice nor did the NFL have a record of past discipline that would render the suspension objectively reasonable.
Whether the decision-maker is a leader of a public safety agency or commissioner of the NFL, beyond simply determining discipline in cases of misconduct on a purely case-by-case basis, issues of consistent discipline and fair notice must be addressed to ensure that disciplinary decisions are legally defensible.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] NFL Mgmt. Council v. NFL Players Ass’n, 2015 U.S. Dist. LEXIS 117662 (S.D.N.Y. Sept. 3, 2015) at 9.
[ii] Id. at 9
[iv] Id. at 18
[v] Id. at 21
[vi] Id. at 27
[vii] Id. at 21.
[viii] Id. at 23.