KMK Law Management Rights Blog

Unless you’ve been out of the country or purposely avoiding news about sports, you’ve probably heard a lot about “Deflategate” and the punishment handed down by the National Football League (NFL) against the New England Patriots and star quarterback Tom Brady.  The short version of the scandal is that during the AFC Championship game on January 18, 2015, some of the New England Patriots’ game footballs were discovered to be underinflated, which could provide a competitive advantage to a quarterback by making them easier to grip.  On January 23, 2015, the NFL announced that it had retained attorney Ted Wells to conduct an investigation and Mr. Wells issued his report on May 6, 2015.  The report concluded, among other things, that

• “[I]t is more probable than not that Jim McNally (the Officials Locker Room attendant for the Patriots) and John Jastremski (an equipment assistant for the Patriots) participated in a deliberate effort to release air from Patriots game balls after the balls were examined by the referee."
• “[I]t is more probable than not that Tom Brady (the quarterback for the Patriots) was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls."

Brady denies that he instructed anyone to violate NFL rules although he has publicly acknowledged his preference for footballs to be inflated at the low end of the allowable range.  In reaching his conclusions about Brady’s involvement, Wells relied heavily on text messages, including an exchange between Jastremski and McNally (the self-described "deflator"):

• "Talked to him last night. He actually brought you up and said you must have a lot of stress trying to get them done..."

Wells viewed this as proof Brady was involved, believing that "he" was Brady.  However, Jastremski denied that the text referred to footballs or Brady but rather to some tickets he was attempting to sell.  Regardless, the NFL acted upon Wells’ conclusions and punished Brady and the Patriots. 

Let’s assume that the “Deflategate” investigation was an investigation into workplace discrimination or harassment and consider how the NFL did with its response.  As an initial matter, when an employer receives a complaint of discrimination or harassment, an investigation should be conducted and concluded promptly.  In this case, an investigation was initiated promptly but took almost five months to complete.  This would not generally be an acceptable response time for a workplace investigation and it is difficult to fathom why the Deflategate investigation took so long.

One important thing for employers to consider in their investigations is the prevalence of text messages in communications today.  The Wells investigation team certainly took this fact to heart and gathered texts related to the allegations.  The investigation also looked into and considered communications between witnesses about the investigation itself.  Employers would do well to emulate these aspects of the investigation, i.e. gather and preserve all relevant text messages and consider communications between witnesses about the investigation.

The biggest problems with the Wells report are its conclusions.  When employers conduct investigations, there are only two possible outcomes: 1) allegations are substantiated; or 2) allegations cannot be substantiated.  Credibility determinations may be made but they should be based on objective evidence, e.g. three witnesses consistently say the harassment occurred vs. one witness who denies it.  The Wells report continually falls back on the “more probable than not” disclaimer but there is no objective evidence to even support that watered-down conclusion.  No one on the Patriots’ side has admitted anything and there is no direct evidence.  Even worse, there is absolutely nothing linking Brady to the alleged conduct.  Even if the text messages refer to Brady and footballs, there is nothing in them to suggest that he was advocating for rules violations as opposed to his preference that the footballs be inflated at the low end of the acceptable range.  At most, the Wells report seems to establish that some of the Patriots’ locker room staff acted suspiciously with respect to the footballs and the investigation and that Brady generally discussed the investigation with other witnesses. 

A well handled workplace investigation would have concluded that the allegations of intentional rules violations by Patriots’ staff and Brady could not be substantiated.  This does not mean that the NFL could not have acted.  The Wells report did establish that the Patriots’ footballs were underinflated and in violation of the rules.  The Patriots could have been held responsible for this and punished without establishing every detail of how it supposedly occurred.  Unfortunately, the conclusions of the Wells report do not hold air and the NFL’s response was overblown.  Employers can avoid similar outcomes through careful and objective analysis of data gathered in their investigations.