New England Patriots quarterback Tom Brady was suspended for four games
John Dowd: League's suspension is inconsistent and unfair
Editor’s Note: John M. Dowd served as Special Counsel to three commissioners of Major League Baseball in the investigations of Pete Rose, George Steinbrenner, and others. As a federal prosecutor, he conducted the internal investigation of the FBI and of Congressman Dan Flood of Pennsylvania. He is also the author of is the author of www.DeflategateFacts.com. The views expressed are his own.
Football, baseball, soccer and virtually every sport on the planet have one thing in common: They all have rules that are supposed to protect the integrity of the game. When rules get broken, everyone loses.
But when sports authorities don’t enforce their own rules with transparency and fairness, the integrity of the game is equally compromised. What’s happening today with the NFL undermines the concepts of integrity and fairness in the application of the rules and threatens to damage football’s credibility for years to come.
The NFL’s investigation of and rulings against Tom Brady, the NFL’s finest quarterback, are a travesty, and they’ve resulted in uncalled-for penalties. And it’s all based on a report that lacks basic integrity, fairness and credibility.
By way of background, it is not clear what this controversy is actually about. It appears the NFL permitted each team, with their assigned teams of officials, to set the pressure in the footballs. The NFL, unlike Major League Baseball, did not protect the integrity of the ball pressure by keeping the balls at all times in the custody of the officials, thus inviting controversy. The reports also indicate that weather conditions can affect the ball pressure.
There is no evidence that Tom Brady told anyone to deflate the balls below the 12.5 psi limit at any time in any game. The new NFL standard of “more probable than not,” which, according to testimony, the league never notified players of, is guesswork. But guessing with the life, liberty and fortune of the NFL’s best quarterback – or any player for that matter – has no place in any professional sport.
In any event, there is no credible claim or evidence that deflation of the balls affected the performance on the field. Even the NFL’s official investigator concluded in his own report that Brady’s performance improved in the second half after the ball was inflated. From the beginning, we know that whatever is claimed to have happened did not affect the outcome of the game, and that the Patriots were the superior team in the AFC Championship game. So, the investigation revolves around nothing significant to the integrity of the game.
Furthermore, there has been no convincing explanation from the NFL or its three law firms as to why this investigation took five months to complete. Justice delayed is justice denied. The delay creates prejudice and gives the appearance of sour grapes and a witch-hunt against the championship team. One would have expected the NFL to be able to complete a thorough investigation between the AFC Championship game and the Super Bowl to assure the public and players that there should be no concern. Instead, we were treated to months of delay and an unnecessary soap opera.
On July 28, 2015, after a six-month investigation, NFL Commissioner Roger Goodell denied Tom Brady’s appeal with the baseless claim that Brady had not cooperated with the NFL’s investigators by destroying his cell phone and must therefore suffer the penalty of suspension. In fact, neither the commissioner nor his three law firms ever told Brady that failure to produce his phone would be viewed as a separate charge of obstruction. Indeed, in the hearing, Brady testified that if he had been aware of that claim, he would have turned over his cell phone – and in fact he did turn over the telephone’s materials. The fact is the NFL rejected Brady’s offer to cooperate.
By telling Brady they didn’t “want to take access” to his cellphone, the league effectively set Brady up for an ambush when he was unable to produce it upon appeal. By failing to notify Brady that not producing his phone would result in discipline for non-cooperation, the league denied him his fundamental right to a notice of charge and the right to defend against it. And by repeatedly shifting its goal posts on what was expected of him – and what could be used against him – the NFL’s investigation lost its fairness and integrity.
No player has ever been suspended for failing to cooperate before. Brett Favre settled for a $50,000 fine over his alleged failure to cooperate with his sexual harassment case in 2010 and that’s it. A four-game suspension for failure to cooperate remains totally unprecedented and arbitrary. There were no rules to the road in terms of what Brady and team could have expected for failing to cooperate EVEN IF they had made a calculated decision to do so. The announcement by the commissioner blindsided Tom Brady with a charge he had no opportunity to confront.
The NFL’s fundamental failure to conduct an expeditious, fair, honest and consistent approach to rules enforcement undermines the entire game. The league needs to reconsider its suspension of Tom Brady, and use this unfortunate episode as an opportunity to correct a terrible injustice to one the greatest quarterbacks in NFL history.