While I am well aware that the suspension of Tom Brady and the whole deflategate controversy has been a subject of a great deal of discussion in these parts for the past half year, I have done my best not to immerse myself in the minutiae of the case. Part of this is because I am a busy man and it is easy to get lost in the minutiae. Part of it is because the Wells Report was written by a friend of mine from college, so I know without reading it that the work is shoddy. Part of it is because I believe that Tom Brady is very superstitious about the firmness of his footballs and I really do not want to convince myself that the superstition went beyond that.
However, there was a statement Brady made after the NFL commissioner, Roger Goodell, upheld his four game suspension that really resonated with me and I believe is true. Since the destruction of Tom Brady’s cell phone is such an important part of the Goodell decision, I wanted to share it here. Specifically Tom Brady said “As a member of a union, I was under no obligation to set a new precedent going forward, nor was I made aware at any time during Mr. Wells investigation, that failing to subject my cell phone to investigation would result in ANY discipline”. I believe this statement because of a case that I was once involved in.
I had occasion to represent a tenured faculty member of a university who was involved in disciplinary proceedings. He was represented by a union attorney, but wanted his own personal representative to be there as well. At the disciplinary hearing, the administration demanded that my client allow a monitor in his classroom. The union representative was apoplectic.
Under no circumstances was she going to allow my client to allow a monitor in his classroom. She told the administration that if they wanted to start putting monitors into the classrooms of tenured professors, they needed to come to the negotiating table and get it written into the collective bargaining agreement. Under no circumstances was she going to allow the administration to “set a new precedent going forward” by means of threatening professors with other discipline. In fact, the whole disciplinary hearing was an eye opening experience for me. I had a front row seat to a union attorney zealously guarding the union’s perquisites and insisting that the administration have no rights to make any demands that are not already a part of the collective bargaining agreement.
As such, I have no doubt that Tom Brady’s union representatives and union lawyers, as well as his personal attorney, told him that under no circumstances would the NFL be allowed to see his cell phone. There is no doubt in my mind that the NFL Players Association drew a line in the sand and said to the NFL that if they want to look at players’ cell phones, they need to negotiate it as a part of the collective bargaining agreement. As a result, I actually believe the statement by Tom Brady that he was told that this would not happen under any circumstances is true. I believe it is true even though I disbelieve the later statement that he always destroys his cell phone. While I do believe that Tom Brady and his wife’s cell phones do not become hand me downs, like they do in most families, I do understand that there is some minutiae in this case that Tom Brady produced one of his old cell phones as evidence at one of his hearings. However, I do not believe that matters. I do not doubt that Tom Brady was more than a little bit emotional about the allegations being made against him and about the demand that he turn over his cell phone. In terms of his reaction to the allegations against him, I think his issues have been widely discussed. In terms of the contents of the cell phone, he has a beautiful wife and the two of them control a significant amount of wealth. I am certain that there is all kinds of interesting information on that cell phone that all of us would love to see. Now that the NFL appears to be leaking his email, there is also every reason to believe that there is plenty of trash talk in his texts. It would not surprise me in the least if, after being told that he was not turning over his cell phone under any circumstances, Tom Brady had a “forget you” moment in which he ran out and bought a new iPhone 6, probably with the loose currency in his pocket, and took a hammer to the phone that Wells wanted so badly. I can see how that would have felt really good at the time.
I can also see where Goodell basing his ruling on this may create a lot of problems for the NFL. There is no way that the Players Association does not fight this tooth and nail. They frankly have no choice. What makes this particular issue difficult for the NFL is that if it goes to trial, it will lose the rarified air of a conflict between the NFL and one of its star (which is to say wealthiest) players and will take on a more generalized union-management feel. In other words, this is a conflict which exists between labor and management anywhere there is a union. Management believes that it is entitled to things as a part of its disciplinary process that unions believe can only be gotten at through the collective bargaining process. To uphold the NFL in demanding Tom Brady’s cell phone would mean that the courts would have to uphold the university’s demand that they be allowed to put a monitor in a tenured professor’s classroom. They would have to uphold the Town of Springfield’s demand that they put GPS monitors in police cruisers. It would be to uphold any manner of management demands when accusations have been made against unionized employees. I will note that in my case, the administration backed down on the demand for a monitor. Wells insists he never threatened Brady that something bad would happen if he did not turn over the phone. The Town of Springfield lost in Federal Court. Amazingly, if the case goes to trial, Tom Brady will be the personification of the rights of iron workers, coal miners, fire fighters and truck drivers.