It’s difficult to predict the discipline will be imposed as a result of the Ted Wells report without knowing who will be imposing it. (More on that in a later blurb.) But it’s clear based on the conclusions and other observations in the Wells report that Patriots quarterback Tom Brady faces a likely suspension.
As to the incident at the heart of the case, Ted Wells has concluded that “it is more probable than not that Tom Brady . . . was at least generally aware of the inappropriate activities . . . involving the release of air from Patriots game balls.” While the “more probable than not” standard already has been twisted by those inclined to downplay the situation (including Brady’s father, who warped “probable” into “possible”), the phrase is a reflection of the standard of proof necessary for determining that the rules regarding the integrity of the game were violated.
For Brady, there’s another problem; he refused to fully cooperate with the investigation. As the NFL’s Policy on Integrity of the Game & Enforcement of Competitive Rules states, “Failure to cooperate in an investigation shall be considered conduct detrimental to the League and will subject the offending club and responsible individual(s) to appropriate discipline.”
That shouldn’t be a surprise. In any workplace investigation, there’s one clear and unmistakable principle: Employees must cooperate with the process by providing truthful and accurate information relevant to the investigation.
In this case, Brady submitted to an interview, but he “declined to make available any documents or electronic information (including text messages and email) that [Wells] requested, even though those requests were limited to the subject matter of [the] investigation (such as messages concerning the preparation of game balls, air pressure of balls, inflation of balls or deflation of balls).”
One popular theory/rationalization that has emerged in the wake of this news is that Brady may have had private information that he didn’t want Wells and his team of investigators to see. But the Wells report explains that “we offered to allow Brady’s counsel to screen and control the production so that it would be limited strictly to responsive materials and would not involve our taking possession of Brady’s telephone or other electronic devices.”
The contents of the text messages provided by John Jastremski and Jim McNally demonstrate how valuable those communications can be in getting to the truth. If the Patriots had stonewalled Wells regarding the Jastremski and McNally texts, it would have been a lot harder for Wells to conclude that something fishy had been occurring. So it’s no surprise that Wells described Brady’s actions as “not helpful” to the investigation.
We’re all now left to wonder how helpful the information from Brady may have been. In a case that lacks a smoking gun, it’s not crazy to think that the smoking gun resides somewhere on Tom Brady’s cell phone. Indeed, Brady chose not cooperating with the investigation and certain punishment from the league over risking the discovery of evidence that could have moved the evidentiary needle from “more probable than not” to “crystal freaking clear.”
In a league that routinely suspends players for smoking marijuana and/or engaging in off-duty behavior that has no direct impact on the integrity of the playing of the game of football, how can the NFL not suspend Brady for his general awareness of the deflation scheme and for deliberately refusing to provide information that may have made his involvement even more obvious?
More than four years ago, the NFL fined Brett Favre $50,000 for failing to be candid in the investigation regarding his, ahem, interactions with a former Jets employee. But the conduct at issue for Favre had no connection to the integrity of the game of football. Here, Brady’s failure to cooperate prevented the NFL from getting the clearest possible picture regarding the question of whether and to what extent a quarterback was involved with tampering with footballs.
Again, what ultimately happens to Brady will depend largely on the person who makes the decision. The manner in which the decision is handled could in turn spark an appeal, an arbitration, and/or litigation. Regardless, it’s hard at this point to envision Brady not being suspended. And it’s hard to come up with a good reason why he shouldn’t be — especially since he deliberately refused to fully cooperate with one of the most significant investigations that the NFL has conducted regarding game-integrity violations in recent years.