The National Football League kicks off its season tonight with star quarterback Tom Brady starting under center for the defending Super Bowl Champions, the New England Patriots. It was tumultuous off-season because of a botched workplace investigation and bungled discipline. There are lessons to be learned for compliance professionals.
First. I’m a long time New England Patriots fan who has watched the team struggle through its early years, its current success and its failures. My view is tainted by my fandom.
Second. The Patriots cheated and improperly inflated game balls during the Colts game last season. There should be punishment.
Other than the star power and wealth of the many people subject to the investigation, it is a routine workplace investigation. The league took steps to determine who did what and who knew what. The NFL hired a supposedly disinterested third-party to conduct an independent investigation. The result was the Wells Report.
The first problem with the investigation was the extended period of time it took to document the investigation. It took five months. That was too long given the small number of individuals involved and narrow time frame during which the bad acts took place.
John Jastremski, an assistant equipment manager, and Jim McNally, the officials’ locker room attendant, were suspended for their role in deflating footballs before the AFC Championship Game. The Wells Report makes a strong finding that these two were actively involved in manipulating the balls improperly.
The league punished the Patriots as an organization, levying a $1 million fine and taking away their first round pick in the 2016 NFL draft and their fourth round pick in the 2017 NFL draft.
The only point in major contention was levying a four-game suspension against Tom Brady. The discipline was because:
With respect to your particular involvement, the report established that there is substantial and credible evidence to conclude you were at least generally aware of the actions of the Patriots’ employees involved in the deflation of the footballs and that it was unlikely that their actions were done without your knowledge. Moreover, the report documents your failure to cooperate fully and candidly with the investigation, including by refusing to produce any relevant electronic evidence (emails, texts, etc.), despite being offered extraordinary safeguards by the investigators to protect unrelated personal information, and by providing testimony that the report concludes was not plausible and contradicted by other evidence.
Although the Patriots agreed to the organizational punishment, Mr. Brady was not willing to agree to the suspension. The Wells Report did not find that Mr. Brady had any direct knowledge of the ball tampering, that he condoned it or that he ordered it.
The legal wrangling highlights that league actions are limited by and subject to the collective bargaining agreement with the players. Union rules are in effect. That sets the process and requirements apart from a workplace of at-will employees.
In the legal appeal, the court found that there was inadequate notice of punishment. Brady had no notice that he could receive a four-game suspension for general awareness of ball deflation by others or non-cooperation with the investigation. Brady also had no notice that his discipline would be the equivalent of the discipline imposed upon a player who used performance enhancing drugs. Adequate notice of punishment is a requirement of union shop rules.
In November 2014, the Minnesota Vikings and Carolina Panthers were caught on film using sideline heaters to warm the footballs during the game in violation of league policies, but no penalties were issued in that case.
In 2010 Brett Favre interfered with an NFL investigation of sexual harassment. He was fined $50,000, but not subject to a suspension.
In 2009, the Jets were caught tampering with game balls used for kicking. The equipment manager was suspended, but there was no punishment levied against the kicker.
In the player policy, equipment violations are noted as being subject to a fine.
The NFL is always going to have a tougher time disciplining players. Not because of their wealth or notoriety, but because of the union rules in place. The other problem is that the NFL has a patchwork of polices and procedures around disciplining players.
Commissioner Goodell labeled Mr. Brady’s behavior as “conduct detrimental” and equated it to steroid use. That is supposedly how he came up with the four game suspension. However, there is a specific policy adopted by the league and the players on steroid use. Under the union rules, Commissioner Goodell can’t up-punish based on an unrelated policy.
The NFL and the players union need to straighten out the disciplinary policies and punishments. The union rules require the players have adequate notice of the likely punishment.
Of course, the Patriots should be punished and they were. Even without the Brady suspension, the monetary fine and loss of draft picks are among the biggest punishments ever imposed by the NFL.
Now it’s time to play the game. Are you ready for some football?!?
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