Deflategate: Four Games and Four Lessons for Unionized Employers

This week would have marked the return of Tom Brady, had his four game suspension not been reversed by the United States District Court for the Southern District of New York. Much ink has been spilled over Brady’s suspension for his [alleged] involvement in using deflated footballs and the subsequent cover up, and Brady’s appeal of that suspension. But is there really anything of real value to learn from this case?

Yes, if you are a unionized employer, there are some valuable lessons to be learned. Here are four (one for each game Brady would/should have served) key takeaways for unionized employers.

  1. Employees must be on notice that conduct is inappropriate. Although it is laughable that Brady did not know he was doing anything wrong by encouraging the use of deflated footballs, the court held that Brady was never advised that he could be subject to disciplinary action for being aware of the use of deflated footballs and not reporting it. As many of you know, work rules take on a whole new meaning in a unionized setting. Often, these work rules are litigated and take on their own unique meaning. In the Brady case, the rules regarding inflation offootballs was apparently given to the NFL clubs, not the players. The court found that Brady was not put on notice that his knowledge of the deflated footballs could result in discipline; and therefore, he should not have been disciplined for that conduct.The takeaway: draft a clear and concise code of conduct and make sure every employee signs an acknowledgement of receipt of the code.
  2. Employeesmust be on notice of possible disciplinary penalties. The court also concluded that even if Brady knew he could be subjected to discipline for failing to report the deflated footballs, he was not on notice that he would be suspended four games for such conduct. The level of discipline was based on the NFL’s performance enhancing drug policy, but Brady argued that his conduct was more in line with an equipment or uniform violation, which would only result in a fine.The takeaway: make sure you have a well crafted discipline policy that grants you significant discretion with respect to disciplinary action for violations of your code of conduct.
  3. Employeesmust be required to cooperate fully in an internal investigation. Brady apparently destroyed his cell phone, which held relevant evidence, almost immediately after his initial meeting with the NFL’s outside investigators. That is absolutely shocking and outrageous. It is also shocking that the court did not take issue with this conduct. But the court found that no NFL player had ever been disciplined for failing to cooperate with an internal investigation in the past.The takeaway: although we question that such a rule is really necessary (like a specific written rule against theft or fighting), make sure your code of conduct requires cooperation during internal investigations.
  4. Priorto issuing disciplinary action, employees should be afforded some level of due process. Although a formal hearing will not be necessary in every case, some level of due process should be provided before discipline is rendered. In many instances, employers benefit from these informal meeting by obtaining key information. Employees should be advised, generally, of the nature of the charges against them and should be afforded the opportunity to respond to those charges. In addition, any subsequent appeal process should not only be impartial, but should avoid even the appearance of impropriety. A review of the court’s decision leaves one with the impression that the court had an issue accepting the NFL’s role as both prosecutor and judge, even though the NFL Players Association had specifically agreed to that approach.

Please keep in mind that some of the changes recommended abovewill require prior negotiation with the appropriate union. But now would be a good time to review your code of conduct and your disciplinary policies and procedures to determine what if any changes you would like to make.

Also, it does appear that the court’s decision may have confused the role of the arbitrator, NFL Commissioner Roger Goodell, and the NFL’s discipline issuing office. In several instances the court appears to indicate that it was Goodell himself that issued the discipline, rather than Troy Vincent, the Executive Vice President in charge of discipline. As a result, there may have been confusion regarding the appropriate standard of review for evaluating Goodell’s role as the arbitrator reviewing Vincent’s imposition of discipline. One could argue that the decision lacks the appropriate deference to be afforded an arbitrator under federal labor law. The NFL has appealed the court’s decision, and the NFL maytake up this issue on appeal.