FCPA Compliance and Ethics Blog

January 28, 2015

The Patriots, the NFL and Compliance

Patriots PictureYou knew it was coming. No, not a Cialis-themed blog post, but close enough, ‘Deflategate’ and the compliance angle. In honor of this weekend’s Super Bowl it is certainly worth considering. You might think with all that is going on in the world, the air pressure of footballs might not be too high on the list but unfortunately that will not be the case as most of the national news broadcasts over the past week have led off with this story. For those hermits among you reading this blog post, the claims relate to the footballs used in the American Football Conference (AFC) Championship game between the mighty New England Patriots and the Indianapolis Colts, said Pats have been accused of cheating by intentionally by under inflating the footballs used in their win over the Colts. The National Football League (NFL) is investigating and that alone should give you comfort that all will be done honorably given how well the NFL has handled itself over the past 12 months.

In a Press Conference last week, New England golden boy and quarterback (and most importantly-fellow UM grad) Tom Brady claimed, in an article by Ken Belson in the New York Times (NYT) entitled “N.F.L. Ends Silence on Underinflated Footballs to Say It Is Investigating, to have “no knowledge of how the Patriots came to use underinflated footballs” in the Colts game. Unfortunately for Brady, his honesty appeared to be several notches below the norm when he made this assertion. If you saw the Press Conference itself, it was very clear the Golden Boy was uncomfortable even answering the question and there is usually a very good reason even a four year-old hems and haws when answering such a difficult question.

Moreover, he was skewered by former quarterbacks for Sgt. Schultz-like claims of “I know nothing.” Tim Hasselbeck was quoted in the NYT piece as saying, “The balls were evaluated at halftime and the only reason you do that is there is some concern. If the balls were O.K. before the game but not by halftime, and it was only New England’s balls that were suspect, then obviously something happened to the balls between the initial inspection and the second half.” Hasselback went on to say that “Because quarterbacks alone are responsible for choosing the game-day footballs, the N.F.L.’s inquiry will eventually center on Brady, because the Patriots’ staff members would be unlikely to deflate game balls on their own.”

Former quarterback Mark Brunnell was even starker when he said on ESPN, and reported in a Sports Illustrated article entitled “Mark Brunell on why he reacted so strongly to Brady’s press conference” by Richard Deitsch, that ““I did not believe what Tom Brady had to say,” said Brunell, in a segment where he nearly choked up. “Those balls were deflated. Somebody had to do it. And I don’t believe there is an equipment manager in the NFL that would on his own initiative deflate a ball without the starting quarterback’s approval.”

Patriots head coach Bill Belichick held two Press Conferences last week. In the first one he claimed never to have given the inflation of footballs so much as a moment’s thought during all his years of coaching. His performance was about as believable as Brady’s. However the Coach doubled down in a Vegas sort of way the next day, when he said that he had thoroughly studied the issue and (scientifically) postulated that it was the cold weather which caused the dramatic two pound deflation in the footballs in some 30 minutes or so. His performance was so theatrical that even Bill Nye, the Science Guy, weighed in to disprove Belichick’s tale of weather related woe. I guess maybe we should leave scientific inquiry to the scientists.

The ball boy did it! Admit it, you knew it was coming. That is the new excuse about how footballs became underinflated. We can all take comfort that at least in the NFL, the myth of the rogue employee is still alive and well. I wish I could say it was in some work of fiction but if I did, I do not think anyone would believe me. But for a multi-billion dollar enterprise, i.e. the NFL, that was good enough. Perhaps the NFL might need to consider the incentives put in place for the Patriots, that of winning games, and reform the incentive system which they apparently unfairly placed this formerly law-abiding ball boy in the untenable position of deflating the Patriots footballs because that was the only way to guarantee his incentive in the nefarious world of professional sports incentive programs.

The NFL might want to risk assess the points where a team can change physical properties of tools to provide unfair advantages (i.e. Cheat). Where are the places that a home team can change equipment to its (unfair) advantage? Any reasonable risk assessment might have turned up that tool, which happens to have the same name as the game that it is such an integral part of, football. If such a tool is susceptible to a risk of management, could that risk be managed?

There might be another way to try and handle this conundrum. Perhaps the NFL could put procedures in place to prevent and then detect violations of its inflation policies for game day footballs. For instance, the NFL itself could be in charge of the footballs throughout the process, thereby taking away this obviously too-great temptation away from this former law-abiding ball boy. The League might even require background checks into ball boys to see if they have been accused of deflating footballs at other jobs. A robust Google search might be just the ticket. Relying on No. 2 of McNulty’s Maxims of an effective compliance program, could there even be a detect prong by checking the air pressure on the footballs?

Maybe the problem is that there is no penalty when a part of the same organization which engages in the conduct, disciplines itself. Oops, the Patriots did engage in cheating and got caught in the Spygate scandal. Oh well, I guess recidivism is not considered a problem in the most profitable sports league in America. Boy the NFL really showed them with that penalty and laid down the law of DO NOT EVER cheat again. Wow, I feel better already.

What lessons are there for the compliance practitioner? Probably too many to list in one blog post. First up is what do you do with convicted cheats, such as Belichick, who in the second Press Conference was simply shocked that anyone would bring up his NFL tagged conviction and $500K fine for Spygate. Should being a recidivist matter in compliance? What if you say you are sorry? What if you take the Belichick approach and simply blame the weather?

What about the NFL and their role here? Of course they are studying the issue with all the integrity they have brought upon themselves over the past year with the concussion issue, the Ray Rice scandal and the Adrian Peterson matter. I am sure that the investigation will be as forthcoming as the one performed in the wake of the Ray Rice video issue. Of course there is still the issue of favoritism by the NFL towards the Patriots and their owner, Robert Kraft, who apparently is great buddies with NFL Commissioner Roger Goodell. I am sure that Goodell will not forget the favor he did Kraft and the Patriots when he destroyed all the Spygate tapes before anyone else could see them. I suppose Goodell will have to decide yet again if it is the responsibility of the Commissioner to simply protect the league or if he should act with some integrity. I guess in his mind they could well be the same things.

One Seattle player, Richard Sherman, was quoted in an ESPN article, entitled “Pats won’t be punished” by Josh Weinfuss, for his opinion on what might happen. He said, “Will they be punished? Probably not. Not as long as Robert Kraft and Roger Goodell are still taking pictures at their respective homes. You talk about conflict of interest. As long as that happens, it won’t affect them at all. Nothing will stop them.” The problem is that Goodell was partying with the same Robert Kraft the weekend of the Colts game. Kraft was so proud of it, he posted pictures of himself with the Commish at his house party before the game. A bromance can only be around the corner. Weinfuss went on to write, “Sherman doesn’t think there’s much of a difference between the perception of the Patriots and the reality of how close they get to toeing the line on the rules.”

What does it all mean? Belichick is often thought of as a coaching genius for taking the Patriots to now six Super Bowls. He does this, in large part, by creating an ‘us against the world’ mentality that everyone else hates us so we have to show them. I wonder what he was thinking for this Super Bowl to motivate his team? So is Belichick crazy, you bet he is … like a fox.

Go Pats.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2015

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