Mr. Brady’s Odd-Shaped Balls: NFL Management Council v. NFL Players’ Association

Where I come from we sometimes joke that rugby is a game played by gentlemen with odd-shaped balls. The same is true of the human demolition derby — American football — so popular in my current location. And even those of us who tune in to the Superbowl only for the ads know that star quarterback Tom Brady has recently had a serious problem with odd-shaped balls.

In a match last year between New England and Indianapolis, the game balls were deflated below the regulation pressure level. An investigation concluded that Mr. Brady was ‘generally aware’ of a scheme to break the rules. Quite why anyone would prefer to play with softer balls than usual is a mystery to me — indeed, Mr. Brady’s passing stats were more impressive in the second half of the game, which was played with properly inflated balls.

After an internal process, Mr. Brady was suspended for four games, a decision based partly on his awareness of the nefarious scheme to deflate the balls and partly on his alleged obstruction of the investigation. This was a serious sanction. The NFL went to federal court to have the decision confirmed; the players’ union asked for it to be vacated. Judge Berman found for the players.

Mr. Brady was not treated fairly for several reasons, most importantly because he did not have fair notice of the possibility of a 4-game suspension, a violation of due process (pp. 20-32). The decision was based on a loose analogy with the NFL’s steroid policy, an analogy Judge Berman rejected because this policy is sui generis (p. 22).

My knowledge of the American Football rule-book was gained entirely from reading Judge Berman’s decision, so readers should feel free to correct me, but it seems to me that more could have been made of the Game Operations Manual section reproduced at footnote 2. It provides that altering game balls leaves “the person responsible and, if appropriate, the head coach or other club personnel…subject to discipline, including but not limited to, a fine of $25,000”. So there was certainly notice that ball-tampering is an offence.

In addition, clause 15 of Mr. Brady’s standard player contract provides for discipline for “conduct reasonably judged…to be detrimental” to the NFL (see footnote 8). Is it too much of a stretch to include nefarious deflation schemes and attempts to cover them up in this clause?

In general, if Mr. Brady’s offence — general awareness of ball-tampering and obstruction of the investigation — was sui generis, the sanction would presumably also be sui generis and there was nothing especially egregious about making an analogy with the steroid regime.

But I may be wrong. Professor Sunstein, who knows more than I do about American public law and, it seems, about American football, sees the decision as a triumph for the rule of law:

Tom Brady has enjoyed countless victories on the football field, and he’s long been a symbol of grace under pressure. Having now won in federal court, he’s also become an unlikely symbol for something even better: the rule of law.

Judge Berman also found that the process was unfair because Mr. Brady was not allowed to compel an important witness to testify (pp. 32-36) and because he did not have access to relevant evidence (pp. 36-38). On these points one could doubtless argue that more deference should have been paid to the first-instance decision-maker, but the prospects of a successful appeal by the NFL are surely slim at this stage.

This content has been updated on September 7, 2015 at 15:13.