Patriots – Compliance Building

Comeback

It’s tough thinking about compliance this morning after staying up to watch the greatest comeback in Super Bowl history by one of the greatest quarterbacks, orchestrated by one of the greatest coaches.

I reflect back humbly. I grew up with the red-uniformed Patsies. I remember the 1 and 2 win seasons. I remember the years of not being able to beat Miami in Miami.

At halftime of this game, I remembered the Patriots’ first Super Bowl when the team was steamrolled by the great ’85 Bears in what, at the time, was the most lopsided loss in Super Bowl history.

I remember the Patriots with one foot out the door to St. Louis and again with an aborted move to Hartford.

I know that the painting in Tom Brady’s attic will not hold back time forever, that Belichick will retire someday, and that Mr. Kraft will pass on the team to someone else to run. This dynasty will come to end some day.

But not today.

I’ll leave with a picture of my good friend holding the Lombardi Trophy last night.

Compliance, Workplace Investigations, and Deflategate

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?!?

Sources:

Brady, Footballs, and Tone at the Top

Handsome rich man from New England forced to take four-week vacation with supermodel wife.

As a football fan, New England Patriots fan and a compliance professional, I can’t let the Wells Report and the punishment levied by the NFL pass without comment.

There was a violation of the league rules and there should be punishment.

A low level employee, Jim McNally, admitted to working on the footballs. A high-level manager, Tom Brady, had previously expressed his dissatisfaction with the condition of the balls. Brady has said he likes his footballs inflated to the lowest permissible levels because they are easier to grip, throw, and catch.

It is easy to conclude that McNally wanted to please Mr. Brady and worked hard to do so. Hard enough that he was even willing to step over the line and work the balls after they inspected by the NFL referee.

There is no clear evidence that Brady told McNally to deflate the balls, but clearly McNally was working to please Brady. The “tone at the top” was to fix the balls and win at all costs.

The NFL levied punishment that affects the team at all levels. Brady loses a quarter of his pay for the year with a four game suspension. Coach Belichick loses a first-round draft pick next year and a fourth-round choice the year after. Robert Kraft, the owner has to write a check for the $1 million fine. The franchise as whole loses their most important player for a a fourth of the season and dramatically reduces their chances to repeat as the Super Bowl winner.

You can argue over the appropriate punishment.

Ray Rice was initially suspended for two games for assaulting his girlfriend, now wife. That punishment was only increased after the clear and convincing evidence in the videotape was made public.

A previous ball tampering violation in the 2014 season went with out punishment. During the frigid December game between the Vikings and the Panthers, sideline attendants were videotaped using heaters to warm up the footballs. That is a clear violation of NFL rules. The penalty was a verbal warning.

You can also argue that the football condition standards are outdated. Before 2006, the home team prepared all the footballs used by both sides. The football condition rule would keep the preparation within a range of acceptable norms. Each quarterback has their own preference for the condition of the balls. Mr. Brady and Peyton Manning helped change the rule so that each team could prepare balls to the their liking, with the rules parameters of course.

The Patriots scored 17 points with one interception in the first half with the under-inflated footballs. The team scored 28 points and had no interceptions in the second half with the properly inflated footballs. It’s hard to see how the small change in the footballs’ pressure affected the outcome of the game.

But it does affect the integrity of the game. For the Patriots, that came from the tone at the top. “Win at all costs.” Mr. Brady pressured the lower level employee to fix the balls.

The Wells Report did not find a smoking gun. There was no written message to condition the balls outside the rules parameters.

From the compliance perspective, there was no message to obey the rules. For most organizations with a compliance program you would expect the employee to have signed a certification that they understood the rules.

Perhaps the outcome would have been different if the investigation had turned up the certification that Mr. McNally understood the ball rules and protocol for handling them. You would have another one from Mr. Brady that he also understood the parameters. Maybe the incident would never had occurred in the first place.

In the end, Patriots-haters will call them cheaters. Patriots fans will scream over the injustice and over-punishment.

I see it as a call for the teams to start implementing compliance programs.

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Compliance and the Super Bowl

super bowl

As a long time Patriots fan, it’s a great morning.

But the Patriots and the NFL were not without compliance failures. Clearly, something went wrong with the Patriots’ footballs in the Indianapolis game. I keep hearing conflicting reports and the investigation is not complete so it’s hard for me to draw any conclusions.

But the Patriots are tainted by the organization’s past rules violation. That makes the current claims all the more damning. Past failures will haunt an organization’s reputation for a long time.

For now, I’m enjoying the crazy win.

Image by Jim Moynihan

Compliance, the Middle-Finger Malfunction, and the Reluctant Touchdown

It’s sad day in Boston. We’ve become accustomed to winning and the Super Bowl drought continues for at least another year. There were two compliance-related stories that came out of Super Bowl XLVI.

The first was singer M.I.A.’s obscene gesture and expletive during the halftime show. After Janet Jackson’s nipple-gate incident eight years ago, you would think the network would keep a finger close to the censor button during halftime. Perhaps they were too closely following Madonna and forgot about the other performers.

Madonna hasn’t been controversial for two decades. Others on the half-time show stage have been known to do and say things that would violate network standards.

The second compliance-related incident was the reluctant touchdown by Ahmad Bradshaw as time was winding down in the fourth quarter. Was his job to score touchdown? or to help his team win? usually, those goals are aligned.

By scoring that touchdown, he gave his team the lead, but also gave Tom Brady more time to mount a comeback. (A comeback that failed. ) If Bradshaw had managed to sit down on the 1 yard line, the Giants would be able to burn more time off the clock and just have to make a relatively easy field goal.

The Patriots had a similar problem. Rarely is a defense called up to let the opposing team score.

Even firms where conflicts of interest are well managed need to realize that sometimes the alignment of interests breaks down. Sometimes, doing the right thing for the organization is different from what you are used to doing.