From the NSBA School Law Seminar Boston, MA

Apr 9, 2016

April 9, 2016

Investigating Employee and Student Misconduct: Lessons from “Deflategate”

Of course, being in Boston, they found a way to make this presentation about Tom Brady and the Patriots. East coast bias much? Being neither a New Englander nor a Patriots fan, I was only tangentially aware of the facts of this case. Turns out even school attorneys from the Midwest can learn a few lessons from “Deflategate”…other than to never bet against Tom Brady or the Patriots.

To briefly summarize, in January, 2015, the NFL hired attorneys to investigate allegations that the Patriots deliberately deflated game balls used during the recent AFC Championship Game to below the level of psi required by the NFL, in violation of league rules. (This is remarkable for a couple of reasons. First, I swore I’d never need to know what “psi” was after high school physics. Two, who knew there were permissible psi levels for footballs?! Turns out the NFL regulates pretty much everything.) The investigators determined that Patriots’ personnel had violated league rules, and that Brady was “at least generally aware” this was occurring. The NFL fined the Patriots and suspended Brady for the first four games of the 2015 season.

Brady, through the NFL Players Association, appealed the suspension and the case went to arbitration. NFL Commissioner Roger Goodell served as the hearing officer, over the seemingly legit objections of the Players Association, which questioned his objectivity. Goodell refused to recuse himself and upheld Brady’s four game suspension.

Both parties appealed the decision to the U.S. District Court for the Southern District of New York. The court vacated Goodell’s arbitration award and reversed Brady’s suspension. Once again, Brady wins. And this was a particularly impressive comeback.

The NFL hired attorney Theodore Wells and the law firm Paul, Weiss to investigate the allegations that the Patriots deflated footballs, and reportedly spent more than $3 million in doing so. Over a period of around five months, attorney-investigators reviewed player equipment, security footage, text messages, call logs, emails, press conferences, league rules and policies, and interviewed no fewer than 66 team and league personnel. The investigators issued their conclusions in the cleverly titled “Wells Report,” which found that it was “more probable than not” that, in connection with the AFC Championship Game, Patriots’ personnel participated in deflating footballs in violation of league rules, and that Tom Brady was “at least generally aware” of these activities.

Given the thoroughness of the investigation and its conclusion that the Patriots and Brady broke the rules, how did the NFL drop the ball, so to speak, resulting in Brady’s reinstatement?

Ironically, the court found that the NFL broke the rules and treated Brady unfairly during the investigation and arbitration proceedings. In preparation for the arbitration, Brady and the Players Association requested “all documents created, obtained, or reviewed by NFL investigators (including Mr. Wells and his investigative team at the Paul, Weiss law firm and NFL security personnel) in connection with the Patriots”™ investigation, including all notes, summaries, or memoranda describing or memorializing any witness interviews.” The NFL denied the request, claiming that the Commissioner did not rely on those documents in reaching his decision — he only relied upon the Wells Report.

The court noted with concern that, after serving as “independent” investigators, the Paul, Weiss firm then represented the NFL in the arbitration proceedings. As a result, the NFL ostensibly had access to all the investigation materials, but those same materials were not provided to Brady and the Players Association. The District Court found Goodell’s failure to produce this information to be “fundamentally unfair,” and that Brady was “prejudiced as a result.”

The main takeaway for school district attorneys from “Deflategate”? Be cautious about blending the role of attorney as independent investigator and attorney as legal advocate.

* “[T]he Paul, Weiss role in this case…changed from “˜independent”™ investigators to NFL’s retained counsel.”
* “[M]ay have afforded Goodell greater access to valuable impressions, insights, and other investigative information which was not available to Brady.”
* “Brady was denied the opportunity to examine and challenge materials that may have led to his suspension and which likely facilitated Paul, Weiss attorneys”™ cross-examination of him.”

And, if a court can muster up concern about “fundamental fairness” for a guy who has won four Super Bowls and is married to a supermodel, you should expect the rights of a dismissed teacher or disciplined student to enjoy even greater protection.

Best Practices:
* Provide an engagement letter at the commencement of an investigation.
* If your role is to serve as an independent investigator only, then the engagement letter should specify that. Do not deviate from that role, and do not represent to witnesses that your conversations or report are protected by attorney-client privilege.
* If your role is to serve as an investigator/legal counsel, make sure the engagement letter states that.
* Clearly identify any investigation reports as privileged.
And finally…never bet against Tom Brady or the Patriots.

That’s a wrap for #COSABoston! Taking off my school lawyer hat now…will be replacing it with my school board member hat as I head over to join the rest of the NSBA Conference.

In other sports news…can’t wait for opening day at Fenway on Monday!