The thrill is gone; did Deflategate taint Pats Super Bowl victory?

Read it here.

Tom BradyFor the last week, we’ve been inundated with coverage about Deflategate and the NFL’s decision to suspend golden boy quarterback Tom Brady for four games, fine the Patriots $1 million, and take away two top draft picks. In case you somehow missed it (and if you did, you must be still stuck in a snowbank left over from last winter), last week the NFL announced the results of an investigation conducted by attorney Ted Wells into allegations that the Patriots and Brady deliberately had the air pressure reduced in game balls prior to the AFC championship game last January. Apparently the game ball is easier to grip and throw (at least for Brady) when it is not inflated to NFL standards.

Prior to the release of the Wells report, all sorts of folks, from scientists at MIT and Bill Nye the science guy, to retired players, to doctors and lawyers, to everyday fans, had weighed in with explanations and theories about why the championship pigskins had (or had not) lost pressure and if it had affected the outcome of the game. Patriot-haters pointed to the Pats history of bending the rules (see spygate in 2007), while Patriot backers pointed out that both teams were using the same football and in fact Brady had not had a good first half but when the properly inflated balls were used in the second half, he had thrown 4 touchdown passes.

The Wells Report concluded that it was “more probable than not” that Brady and two assistants knew about and/or participated in the scheme. One would have thought (hoped?) that the Wells report would have put this matter once and for all to rest, but instead it has just fired up the NFL base (which seems to consist of the entire country, save some granolaheads and leftover hippies). Patriot lovers emphasize that Wells refused to interview an employee who supposedly would have exonerated Brady and the team; they further raise the old canard that there is a conspiracy out to get the team (forgetting that owner Bob Kraft and Commissioner Roger Goodell are buddy buddy. Patriot detractors point out that Brady returned to turn over his cell phone (rather incriminating, don’t you think) and that one of the principals referred to himself in emails as “the Deflator” (which he now incredibly claims was a reference to his diet!”).

So, the battle rages on. Last night Kraft said he would not appeal the penalty, perhaps leaving Brady out to dry. As one columnist wrote this week, quarterbacks come and go, but the NFL ownership club is most exclusive—and lucrative. Don’t want to bite the hand that feeds you.

What does all this have to do with employment law? It has to do with criticism of the fairness of the Wells investigation. A number of commentators have questioned the fairness of the investigation, asking how can Wells be impartial if he is being paid by the NFL? Still others ask how it can be fair that Commissioner Goodell decides Tom Brady’s appeal of his four-game suspension.

Press Herald columnist (an apparent Patriot fan) Alan Caron put it this way in his column May 14:

The NFL, which is a billion-dollar private corporate entity, has just served as the accuser, investigator, prosecutor, judge and executioner in this case…

Imagine the conversation we’d all be having if this case wasn’t about the NFL and the handsome millionaire Tom Brady but about Wal-Mart or Home Depot and a woman stocking the shelf.

Let’s say that Wal-Mart suspected the woman of stealing things, before it had any direct evidence, and recklessly caused her embarrassment and damaged her reputation…[T]he company appointed its own law firm, which handles all lawsuits brought by employees, to undertake an ‘independent’ investigation….

The investigation not surprisingly sustained the company’s claims…by asserting that it was ‘more probable than not’ that the employee stole something…

When Wal-Mart fired the employee…a salivating press rushed to report the findings, as though they’re actually the work of an independent reviewer. The ‘defendant[]’had no day in court, Nor rules of procedure. No independent judge. And no jury of [her] peers to turn to.

If that had actually happened, the country would be shocked and…attorneys would be trampling each other to take the case against Wal-Mart.

Well, let me tell you something, Mr. Caron. This is exactly the world we live in, and no, attorneys are not lining up to take these cases; the employee would be lucky to find a good attorney willing to do so. Because every day in America, what happened to Tom Brady is exactly what happens to non-union workers. Workers are accused of wrongdoing; the company investigates (and usually not be an outsider); and if the employer concludes that the employee likely engaged in the misconduct, it can impose whatever penalty it deems appropriate, up to and including discharge.

And guess what, Mr. Caron? Contrary to your belief, the employee has no right to a day in court. Or to an independent judge, let alone to a jury. Because in America, without a contract of employment or a collective bargaining agreement, an employee is considered to be an at will employee. Which means she can be fired for good reason, bad reason, or no reason at all, so long as the decision is not based on characteristics like race, age, sex, religion, national origin, disability, or (in Maine but not everywhere) sexual orientation.

I wish Mr. Caron were right. I wish that Americans were trampling over each other to assure that they are treated fairly in the workplace. But for now, that is not the law of the land. What happened to Tom Brady could happen to any worker.

One big difference; most of us don’t have millions in our bank accounts to go home to, let alone Gisele Bundchen.