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“Conduct detrimental” vs. “equipment violation” in Brady vs. NFL

Tom Brady, Roger Goodell

AP

The 456-page Tom Brady appeal hearing transcript has now been distilled to a pair of competing 15-page legal briefs aimed at helping the NFL and NFL Players Association persuade Judge Richard M. Berman to squeeze the other side harder when trying to broker a resolution at not one but two upcoming settlement conferences.

For those of you who have read the briefs, the typical reaction is to wonder whether the two parties are writing about entirely different situations. And that’s the way it works in every case. One side crafts a brief that sells its position thoroughly, and the other side crafts a brief that sells its position thoroughly, even though the two thoroughly-sold positions are diametrically opposed.

The challenge in parsing through it all becomes applying common sense and a broader focus to the very narrow sets of facts presented. In Brady’s case, one of the primary questions has become whether the NFL can suspend him for “conduct detrimental to the integrity of, or public confidence in, the game of professional football” based on having “approved of, consented to, and provided inducements in support of” what the Commissioner called “a scheme to tamper with the game balls after they had been approved by the game officials for use in the AFC Championship Game.”

Looking at this one case in isolation and considering the potential impact of a scheme to tamper with game balls on the integrity of the outcome of a game, the NFL’s position makes sense. If a player has “approved of, consented to, and provided inducements in support of” a scheme to tamper with the game balls, the conduct definitely isn’t beneficial to the integrity of the game of professional football, so it must be detrimental to it. And given, as the NFL has argued, that the CBA gives the Commissioner express authority to define conduct detrimental to the integrity of the game and to impose discipline for it, he can basically levy whatever punishment he sees fit.

That would all be fine and dandy (is anything ever dandy without being fine?) if the NFL and NFLPA hadn’t otherwise negotiated a long list of specific rules spelling out specific punishment for a wide variety of situations where player behavior otherwise could be deemed conduct detrimental to the integrity of the game of professional football.

The fine schedule, for example, contains many specific instances of behavior that the Commissioner, given his extremely broad powers, could otherwise deem to be “conduct detrimental.” But the Commissioner can’t, because the NFL already has agreed that only a fine is justified for a first and second offense. (For some finable offenses, a suspension potentially becomes appropriate under the league’s system of progressive discipline.)

Consider this: If a player were caught using stickum to help him catch the footballs thrown by his quarterback (or, to make the facts more aligned with the Brady case, if the player knew that the equipment managers were applying stickum to his gloves for him), would he be committing conduct detrimental to the integrity of the game?

Perhaps, but the NFL already has agreed that the fine for a first offense would be $8,681.

For other uniform and equipment violations, the fine for a first offense is $5,787. The NFLPA consistently has argued that, because the football is the ultimate piece of football equipment, and because Brady received no specific policy informing him that infractions related to the preparation or inflation of the football can result in a suspension, the Commissioner can’t rely on the broad concept of “conduct detrimental” as justification to do whatever he wants.

Under the PED policy, players face a four-game suspension for a first offense for taking any one of a long list of banned substances. What if a new performance-enhancing compound emerges that doesn’t fit on the list? Until the NFL and NFLPA agree to put it on the list and then notify the players of its addition, the player can’t be suspended for it, because it’s not on the agreed list.

Is it conduct detrimental to the interests of the game of professional football to take the cutting-edge substance? Yes. Can the Commissioner fairly and properly do anything about it? No.

To the extent that the Commissioner has compared Brady’s conduct to a PED violation (and not a stickum violation), the deflation concept is more like a new PED than an old-school steroid, because the NFL has admitted that it had no prior sensitivity to the science of football inflation and deflation, including the fairly obvious concept that air pressure drops in cold weather. The league likewise had a historically nonchalant and lackadaisical process for checking football inflation and securing the game balls prior to kickoff, along with a grossly incomplete impromptu procedure for testing 11 of the footballs used by the Patriots at halftime and four of the footballs used by the Colts, with no records created regarding the temperature of the room, the sequence in which the balls were tested, and the specific time each ball was tested.

Basically, the NFL hopes to use “conduct detrimental” as a catch-all donut hole, taking advantage of the absence of a policy that specifically spells out a fine for football deflation to paint with a broad brush (and to discipline without accountability) when the many policies negotiated by the NFL and NFLPA over the years, from the fine schedule to the PED policy to the substance-abuse policy to the Personal Conduct Policy to the various other policies under which players can be disciplined, say nothing about a suspension for knowing about, having involvement in, or personally carrying out a scheme to deflate footballs.

So even if Brady did it, the NFLPA contends he can’t be suspended for it. While P.R. considerations prevent the union from putting it quite that way, that’s the crux of the argument. And given the many limitations on what otherwise would be the ability of the Commissioner to cry “conduct detrimental!” and impose whatever punishment he sees fit at that moment, the NFLPA’s argument has plenty of merit.