DeFlateGate is not over; not by a long shot. As Brady, the Pats, and football fans wait to see how NFL Commissioner Roger Goodell will handle Brady’s appeal of his suspension, it’s fairly certain that Brady, who is known for his planning and attention to detail, is gearing up for the next round.
The Reason Why Brady’s Suspended
Brady has been suspended for four regular season games because it’s likely that he in some manner knew about the deflating of the footballs during the playoffs and his lack of cooperation with the investigation undermines the integrity of the game and public confidence in it. Goodell could have levied a minor punishment, such as a fine, or he had the opportunity to send a message to everyone that no one could play fast and easy with the rules and not face a stern punishment. The commissioner chose the latter and gave Brady a whopper of a punishment.
Game One Suspension
For any punter who bets on the NFL, Brady’s suspension is major news. But the question is will he serve that suspension starting with game one? The other question is will he have to take any time off from play due to his punishment?
First of all, it’s doubtful that he will be out for the first game. That’s because if Goodell rules against Brady’s appeal, the quarterback and the NFL Players Association (NFLPA) will take the NFL to federal court. When they file suit any suspension will be put on hold pending the results of the court case.
The Players Union and the Suspension
Brady has the full support of the NFLPA. That’s important because the union has done well in lawsuits they have brought or supported against the league.
In three high-profile player-discipline cases, the league is 0-3. Those three cases were very serious domestic violence cases involving Ray Rice, Greg Hardy and Adrian Peterson, and each one was successfully challenged on appeal or in court.
What Is Likely To Happen
The federal lawsuit, if one is pursued, will either be filed in Minnesota or Massachusetts. Minnesota has ruled favorably for the union numerous times, while Massachusetts, the home state of the Pats, also tends to lean towards the rights of workers.
If a lawsuit is filed, it will take months before it is heard, and that means that Brady will play in the first games, and probably at least halfway through the season before the issue is settled. So, if you were thinking of not betting on the Pats in the first week, you will want to rethink that depending on Goodell’s decision and what Brady and the NFLPA do after it comes down.
If you’re a punter, then you may want to know what the odds are that a lawsuit will be filed if Goodell stays firm with his original punishment. Reports say that Brady will fight his suspension from any games. That means even one game. The union and the player will filed the lawsuit together, however whether or not it is filed is totally up to Brady.
If Brady pursues the suit and loses, then he would have to serve whatever punishment the commissioner has deemed. Will he take that risk? Perhaps the better question would be is it much of a risk?
In past cases, as noted, the NFLPA has done well. Also, if the suspension is taken to court, it’s doubtful it will withstand the test of the legal system. The NFL does not have any hard evidence that Brady did anything wrong, and although they feel as if he did not cooperate in their investigation when this becomes a legal matter the Fifth Amendment comes into question.
The Fifth Amendment to the U.S. Constitutions protects citizens from self-incrimination. That is, according to this amendment no one can be forced to give evidence against him/herself in a court of law. The question for the court would be can a corporation such as the NFL force someone to do so, and if that person does not cooperate can they be punished for not doing so?
An article in The Legal Intelligence entitled Using the Privilege: Fifth Amendment
Fundamentals for Corporations by attorneys Hayes Hunt and Jonathan R. Cavalier notes that the Fifth Amendment as well as the Miranda Warning, which warns an individual that anything they may say can and will be used against them in a court of law, do generally apply to corporate investigations.
Thus, in what was a formal hearing process before the NFL, Brady may have been protected by these laws and if he was, that means that he did not have to bear witness against himself. If the NFL did not give him adequate warning that his testimony could be used against him, then they would be in deep water in a federal court. Even if that’s not the case, they may not be able to punish Brady for protecting himself by using his Fifth Amendment rights.
The bottom line here, if you can get some odds on it, bet on Tom Brady and the NFLPA all the way in this one.
The Brady case may be less serious, but it represents yet another way for the union to confront the league and throw more egg on Goodell. And, after all, unions are supposed to fight for their constituents.
Brady himself will have to weigh carefully whether it’s worth it to go to court. A decision late in the season could backfire, if whatever suspension Goodell ends up imposing is upheld and Brady missed late-season games. Or he can play a delay game, seeking to keep the matter in litigation until after the season.
As for when all these pieces might be set in motion by Goodell’s decision, the commissioner isn’t giving anything away. Asked Monday after a Capitol Hill appearance when he might make an announcement, he said only “When we reach it.