Labor and Employment Law

Criticisms of Deflategate vs. Domestic Violence Punishments Ignore Critical Fact

 The media frenzy continues today as Tom Brady is anticipated to appeal his four-game suspension and connection with DeflateGate. Brady’s suspension has been criticized for being out of proportion with other disciplinary decisions, namely that other players’ domestic violence incidents have resulted in only 2 game suspensions.

These criticisms omit a critical fact.

In Vincent’s disciplinary notice to Brady, he is crystal clear that Brady’s four game suspension is not only related to his role in deflating footballs, but also (and critically) related to his misconduct during the investigation itself.

The letter states in relevant part:

“Moreover, the report documents your failure to cooperate fully and candidly with the investigation, including by refusing to produce any relevant electronic evidence (emails, texts, etc.), despite being offered extraordinary safeguards by the investigators to protect unrelated personal information, and by providing testimony that the report concludes was not plausible and contradicted by other evidence.”

In short, Tom Brady’s failure to cooperate with the investigation undermines the ability of the NFL to take care of shenanigans (and worse) on an internal basis. Only a few media outlets highlighted this fact.

But what’s the big deal here?  Here’s the big deal: Brady (and his agent who is also an attorney) refused to provide text messages to the investigator as requested, despite the investigator taking extreme measures to assure and confirm that the investigation would only be interested in relevant text messages.

Workplace Investigator and Attorney Diane Citrino explains it well: “In today’s digital age, text messages exchanged at or near in time to the incident are gold.” In the “Deflategate” investigation, text messages relating to a Patriot’s staff person calling himself (or herself) “the deflater,” were the type of critical evidence evidence that “was not typically available in the past,” says Citrino. Citrino agrees that the “DeflateGate” investigation’s conclusion that Brady was uncooperative was on point. Indeed, the lack of cooperation suggested that Brady had motive to hide the ball, not just deflate it.

Where an employee (or NFL player) fails to cooperate with the very mechanisms intended by the employer (or League) to ferret out wrongdoing and wrongdoers quickly and efficiently, a stiff penalty – perhaps even greater than a four game suspension – is merited to ensure that any investigation into allegations of misconduct – whether domestic violence, juicing, or cursing – is taken seriously by all of the employees (or players) involved. Without the ability to enforce the duty to cooperate it would be difficult, if not impossible, to deter any future players from gaming the system.

 Read more articles about managing workplace conflict at Win-Win HR, a blog by Lorene Schaefer.

For more information about LexisNexis products and solutions, please connect with us through our corporate site.