Leaking false claims to paint the innocent as guilty. Destroying evidence that would have cleared the accused. Silencing victims to protect the wrongdoers. Conducting sham interviews. Fixing matches.
Those might sound like the schemes of a totalitarian government. Or maybe the plot of a dirty cop flick from the 1980s.
Instead, it describes how the NFL has been portrayed—in the last week alone.
Serious accusations are unlikely to alter the NFL’s business calculus. Last year, NFL games accounted for 75 of the top 100 broadcasts in America. The NFL has no rival. Chances are you’ll keep watching. The league, which operates in a carefully engineered bubble that eschews transparency and evades legal review, knows that.
Still, the NFL’s Teflon-like qualities are being tested in the run-up to Sunday’s Super Bowl.
It began with Brian Flores’ lawsuit in which he argues that black coaches endure race discrimination in their hiring, employment and firing. Flores accuses teams of conducting sham interviews. He also contends his former boss, Miami Dolphins owner Stephen Ross, offered to bribe him to lose games. These disturbing accusations challenge the integrity of the league. In response, the NFL pledges to do better on inclusivity and to investigate.
In the meantime? We wait. The NFL will share what it prefers to share, on a timeline it selects. The league will answer Flores’ complaint in court and likely motion for its dismissal. However, the legal process won’t reveal much unless and until the case advances past a motion to dismiss and pretrial discovery begins. Many months will pass.
Time is also on the NFL’s side in addressing sex-discrimination allegations against the Washington Commanders and owner Daniel Snyder. There’s growing frustration over the lack of record, particularly given that the league published hundreds of documents during Deflategate. According to The Washington Post, the NFL and Snyder agreed to not release information unless both affirmed. Many accusers are irate and have made their case to Congress, which hasn’t yet forced the league to do anything.
The NFL’s power to set the rules also rings true with Deflategate, a 2015-16 scandal which has now resurfaced.
On Monday, Mike Florio of ProFootballTalk shared previously unreported details from his new book, Playmakers. There were two major revelations.
First, as Florio tells it, it was NFL executive vice president Troy Vincent who leaked to ESPN the false claim that 11 of the 12 Patriots footballs measured more than two pounds under the allowable 12.5 PSI. This claim—made a day after the game and uncorrected for months—shaped public and media perception. Given the high degree of underinflation, the Patriots must have been guilty.
Except it was all wrong.
Nine of the 11 footballs unsuspiciously measured at least 11.35 PSI. MIT Professor John Leonard, among others, concluded that the air pressure readings matched what science predicted. The game was played in New England, on a chilly and rainy evening. As any New Englander with car tires knows, air pressure drops in cold weather.
Florio also reported the NFL had concealed evidence that would have helped to clear the Patriots. In the 2015 season, the league enhanced its football measurements. The accompanying findings, Florio explains, were predictable: In cold weather, PSI was lower, and in warmer weather, PSI was higher. The league never disclosed these findings. On Thursday Goodell told journalists, “I don’t know what happened to the data.” Florio alleged NFL general counsel Jeffrey Pash ordered the data be “expunged.”
Some Patriots fans now demand justice. They’ve urged the team and Tom Brady to sue the NFL. They want stripped draft picks back.
Here’s the legal problem: There’s no viable method of holding the NFL accountable now, just as there was no viable method seven years ago.
First, through contract law, the NFL makes it extremely difficult to sue the league. The league constitution, which owners contractually accept, empowers the commissioner with final say on team discipline. Owners also contractually agree to not sue the league, commissioner or other teams. It’s true that Al Davis sued over his Raiders’ relocations. But Davis didn’t challenge the commissioner’s authority to punish teams. He claimed the league and teams had conspired to violate federal antitrust law on relocation. That type of fact pattern wouldn’t help Patriots owner Robert Kraft.
Brady, too, would face the same high hurdles. For one, he already had his day in court. And he lost. Under the legal doctrines res judicata and collateral estoppel, once claims and issues have been resolved in court, they’re typically over.
Brady challenged Goodell’s issuance of a four-game suspension by invoking his collectively bargained right to arbitration. Unfortunately for Brady, Goodell had the collectively bargained authority to serve as the arbitrator. Goodell, not surprisingly, upheld his own suspension, even with Brady offering sworn testimony.
A federal district judge then sided with Brady, finding the NFL had unlawfully denied Brady a fair shake. But a three-judge appellate panel reversed, reasoning the league had satisfied the very minimal requirements of the CBA as negotiated by Brady’s union. The court went so far as to say that “even if an arbitrator (Goodell) makes mistakes of fact or law, we may not disturb an award so long as he acted within the bounds of his bargained-for authority.” Brady declined to petition the U.S. Supreme Court.
Even if Brady could retry his case with new evidence, the new evidence would likely be deemed inadmissible. Goodell, as the arbitrator, determined the applicable fact record and, under federal arbitration and labor laws, courts are bound to follow arbitrator Goodell’s record. Leonard’s study and various findings of unfairness weren’t part of that record.
In short, even the great Tom Brady can’t burst the NFL’s bubble.
But could Brady still sue for defamation? There, too, the NFL would be insulated.
First, statements made in connection with litigation are ordinarily exempt from defamation claims. Second, the statute of limitations has expired. Third, pursuant to the CBA, Brady likely had to arbitrate before he could turn to courts. Fourth, why bother? Brady went on to win three more Super Bowls. He’s widely regarded as the greatest QB in NFL history. Now retired, Brady surely has better uses of his time and his $475 million in career earnings.
Why does the league behave as if it’s immune from scrutiny? Because it can. It’s a private business. It can pick and choose its internal battles and decide what, if anything, it reports to the public. The league relies on arbitration and grievance processes to maintain confidentiality and avoid the courts. There’s nothing illegal about that, even if it doesn’t sit well. If you don’t like, don’t watch.