Deflategate Reinflated: Second Circuit Reinstates Brady Suspension for Participating in Deflation Scheme and Obstructing Investigation

Nat’l Football League Mgmt. Council v. Nat’l Football League Players Assoc., — F.3d —, 2016 WL 1619883 (2d Cir. Apr. 25, 2016)

On April 25, 2016, the Second Circuit reinstated (reinflated?) the four-game suspension previously imposed upon New England Patriots quarterback, Tom Brady, for his participation in what has come to be known as “Deflategate,” including the destruction of his cellular phone and its contents.

Background

On January 18, 2015, it was discovered that the footballs used by the New England Patriots in the AFC Championship Game against the Indianapolis Colts were underinflated, i.e., “inflated below the allowed minimum pressure of 12.5 pounds per square inch.” The initial investigation into the incident conducted by Theodore V. Wells, Jr., Esq.—an attorney retained by the NFL—concluded it was “more probable than not” that Brady was “at least generally aware” of the scheme to deflate footballs and indicated that “the investigation had been impaired” by Brady’s refusal to produce requested information, including text messages and emails.  This “awareness and knowledge of the scheme” and Brady’s “failure to cooperate” were cited by the NFL Executive Vice President in his letter notifying Brady of the suspension.  Brady, through the National Football League Players Association (“the Players Association”), appealed.

The suspension was affirmed by League Commissioner, Roger Goodell, following arbitration.  Notably, “[s]hortly before the hearing,” Goodell learned that on the day Brady was to be interviewed by the investigation team, he instructed his assistant to destroy the cell phone he used during the relevant time period, “despite knowing that the investigators had requested information from the phone several weeks before.”  Despite Brady’s claim that it was his “ordinary practice” to destroy old cell phones to protect his personal privacy (although he had “nonetheless retained phones that he had used before and after the relevant time frame”), Goodell found that Brady had “not only failed to cooperate with the investigation, but ‘made a deliberate effort to ensure that investigators would never have access to information that he had been asked to produce.’” Accordingly, Goodell drew an adverse inference that the contents of the phone would have been inculpatory and concluded that Brady both participated in the scheme to deflate footballs and “willfully obstructed” the investigation.  The suspension was therefore affirmed.

On appeal to the District Court, the suspensions were vacated.  Specifically, the District Court reasoned that Brady “lacked notice” that he could be suspended (as opposed to merely fined) for his conduct and also held that Brady was deprived of “fundamental fairness” arising from the denial of the Players Association’s motions to compel production of certain evidence at arbitration.

The League appealed to the Second Circuit.

Second Circuit

Sticking to the facts surrounding the cellular phone (and leaving the rest of the opinion to those whose love of football extends beyond its rare—but not unprecedented[1]—intersection with electronic discovery), the Second Circuit spent the bulk of its discussion addressing the Players Association’s argument that “Brady had no notice that destruction of the cell phone would even be an issue in the arbitration proceeding.”  Rejecting that argument, the Court noted that the original notice of suspension specifically cited Brady’s “failure to cooperate fully and candidly with the investigation, including by refusing to produce any relevant electronic evidence (emails, texts, etc.).” The Court further reasoned that claims of being blindsided were substantially belied by Counsel’s opening statements at arbitration, which specifically addressed the request for electronic communications in the course of the investigation, and the Players Association’s retention of a forensic expert in advance of the arbitration. Also rejecting the claim that a separate disciplinary action was necessary to address the cell phone’s destruction, the Court reasoned that it merely “provided further support for the Commissioner’s determination that Brady had failed to cooperate, and served as the basis for an adverse inference as to his participation in the scheme to deflate footballs.”  Finally, the Court reasoned that:

[A]ny reasonable litigant would understand that the destruction of evidence, revealed just days before the start of arbitration proceedings, would be an important issue. It is well established that the law permits a trier of fact to infer that a party who deliberately destroys relevant evidence the party had an obligation to produce did so in order to conceal damaging information from the adjudicator. See, e.g., Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 106–07 (2d Cir.2002); Byrnie v. Town of Cromwell, 243 F.3d 93, 107–12 (2d Cir.2001); Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998). These principles are sufficiently settled that there is no need for any specific mention of them in a collective agreement, and we are confident that their application came as no surprise to Brady or the Association.

Conclusion

Putting aside our collective interest in the cell phone, the fundamental question before the Court was “whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act.”  Accordingly, the judgment of the District Court was reversed and remanded with instructions to confirm the four-game suspension upon the Court’s holding that “the Commissioner properly exercised his broad discretion under the collective bargaining agreement and that his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness.”

A copy of the Second Circuit’s opinion is available here.

[1] https://www.ediscoverylaw.com/2008/03/now-watch-the-lawyers-blitz-the-nfl-destroyed-the-tapes-but-it-still-hasnt-escaped-the-sack/