A Federal Court Reinstates Tom Brady’s Suspension For Cheating


What Brady doesn't get: When people think you cheated, the smirk is does as much damage as the conduct.

What Brady doesn’t get: When people think you cheated, the smirk is does as much damage as the conduct.

The U.S. Court of Appeals for the Second Circuit appeals court reinstated the NFL’s four-game suspension of New England Patriots quarterback Tom Brady yesterday. This overturned last year’s ruling by U.S. District Judge Richard M. Berman, who had nullified the league’s suspension of the superstar quarterback. The three-judge panel of the appeals court wrote…

“We hold that the Commissioner properly exercised his broad discretion under the collective bargaining agreement and that his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness.”

It is important to note that the Court only ruled on whether NFL Commissioner Roger Goodell had the power to suspend Brady and did not violate the player’s rights as a players union member by doing so. The NFL’s current deal with the players gives Goodell the kind of power Major League Baseball gave to its first commissioner after the 1919 Black Sox Scandal, when gamblers fixed the World Series. Goodell, like Landis, can use his discretion to punish a player for “conduct detrimental” to the game and the NFL. They did this because a disturbing number of NFL players were getting headlines for doing things that don’t comport with what the public expects of its paid heroes, like sucker-punching women, shooting people, getting in bar fights, and engaging in assorted felonies. The game also has a very successful coach, Brady’s coach, in fact, who has made it very clear that he will cheat whenever he can get away with it..

I’m not going to rehash the “Deflategate” incident: I wrote enough about it when it occurred. Nobody knows for certain if Tom Brady in fact did conspire with Patriots employees to cheat when his team was behind in a crucial play-off game, but we know this:

  • Most football fans outside of New England believe he cheated.
  • Brady’s obnoxious statements and smirking attitude following the incident not only made it seem like he cheated, but made it clear that he didn’t think cheating was a big deal.
  • The initial defense of Brady offered by his defenders and other players was “everybody does it,” which was not the message the league wanted to convey.
  • Brady was not cooperative or forthcoming in the NFL’s investigation of the incident.

And you know what? That’s enough. That’s enough all by itself to justify Goodell fining Brady and suspending him, to send the unequivocal message that the results of football games and championships will not be determined by cheating while the NFL shrugs and collects its billions. Goodell had to make that statement, and the only way to do it was to punish Brady and the Patriots (who still employ the two staffers involved, one of whom was called “the Deflator”) sufficiently that it hurts.

People forget that the eight Chicago White Sox players who received money to throw the World Series were all found not guilty in court, but Judge Landis banned them from baseball anyway. The prosecution couldn’t prove beyond a reasonable doubt that the players in fact did try to lose. That was Shoeless Joe Jackson’s lament until the day he died, and it is still being echoed by his misguided defenders today: he took the money, but he still played to win. Well, reasoned Commissioner Landis, taking the money was enough to justify kicking him out of the game forever. If he takes the money, if he consorts with gamblers, then the public can never be sure that baseball games aren’t rigged, and the game won’t survive unless they are sure.

Brady didn’t–doesn’t–understand this simple, essential principle. (He has since endorsed Donald Trump, which figures.) As many have pointed out, if he had simply said something like,

“This was a mistake, and I am sorry. It was cold, and I asked the clubhouse attendants to deflate the balls a bit so I could get a better grip. I didn’t think I was cheating, but I now realize that this was a rules violation, and it undermined the integrity of the game and the trust of the fans. I take full responsibility: don’t blame my team, and please don’t blame the two team employees involved. I will accept any discipline the NFL or the Patriots deem necessary. This is a great game, and sportsmanship is a big part of it. I would never do anything intentionally that jeopardizes the NFL and the trust of its fans. This was stupid and wrong, and I am very sorry.”

…then the NFL would have been protected by transparency, and it wouldn’t seem as if he and the Patriots regarded cheating as business as usual.  Instead, Brady did an extended ‘wink-wink’ routine, and behaved as if he was engaged in a cover-up, destroying, for example, his cell phone when the NFL asked to check the text messages on it. Oh, I always destroy my cell phones when I get a new one, he explained. Yes, but Tom, when that cell phone is being sought for evidence that you cheated and the whole nation is watching, and the data on it could exonerate you or at least support your claim of innocence, you would not treat it like any other cell phone, now would you?

Brady acted guilty, and when the league’s reputation is at risk, for a big star and role model to act guilty is indistinguishable from, and just as damaging to the NFL’s reputation as his being guilty.

Washington Post sportswriter Sally Jenkins is convinced that because Brady wasn’t proven guilty, for him to be punished is unethical. Today she criticized Brady’s lawyers for concentrating their arguments on whether Goodell had the power to suspend the quarterback based on the legally…but not ethically–inadequate conclusion that it was “more likely than not” that Brady conspired to deflate the footballs. She wanted them to argue that there was no “crime” committed, that the balls weren’t even deflated. She says the lawyers and judges “missed the point,” when it is Jenkins who misses the point. Brady’s conduct and demeanor made the public believe he cheated, and thus they will believe that the NFL permits and enables cheating if he and his team escape punishment

The NFL can’t afford to allow that perception to exits; no sport can. Goodell properly has the power to send exactly the message he sent.


Sources: Washington Post 1, 2


27 thoughts on “A Federal Court Reinstates Tom Brady’s Suspension For Cheating

  1. The problem is… Goodell botched it.
    1. The NFL rules do not specify what temperature the air pressure of the ball should be measured at. The Ideal Gas Law may have had more to do with the underinflation than gamesmanship by the Patriots. Going from a warm room to a cold football field would cause some deflation.
    2. The NFL still has not fixed the rule. When the Braun arbitration ruling came down, MLB, to its credit, fixed the rules (firing the arbitrator was something else).
    3. Goodell would have been on stronger grounds had he just suspended Brady for having the phone destroyed.

    • You make me wonder if you read the post. He didn’t botch it. I explained why. It is pretty close to what Keith Olbermann said: Brady deserved to be suspended for being so stupid. The cover-up was sufficient to create suspicion. I couldn’t care less about the various gas laws. Brady’s conduct gave the strong impression in a high profile way that he thought the whole thing was no big deal. Cheating allegations are always a big deal.

    • For a moment, there, you had me imagining baseballs being shrunk . . . just enough so that the batter would think the ball was just thaaat much farther away.

      • I MUST remember to check the position of the reply before posting it. This was for IM’s “MLB, to its credit, fixed the rules,”

  2. Jack,
    Love the post. One qualm I have — you often complain (rightly so) against misleading an unfair headlines and yet you post this: “A Federal Court Reinstates Tom Brady’s Suspension For Cheating” but then clarify a paragraph later that, actually “… the Court only ruled on whether NFL Commissioner Roger Goodell had the power to suspend Brady.”

    This isn’t meant as a gotcha or a critique of any of your points more generally; it just seemed at odds with your long-standing principle of accuracy since, as of yet, the suspension hasn’t been reinstated and, even if it is, it will be done at Gooddell’s discretion.


    • It’s accurate. It’s true. The suspension was for cheating, and the Court reinstated it. That the reason they reinstated it had nothing to do with whether he was in fact cheating doesn’t alter the fact of the headline. Right?

      • Jack,
        No, the court didn’t order the reinstatement of the suspension; it ruled the Gooddell did, in fact, have the right to suspend Brady and HE could reinstate it if he chose.

        From the decision: “We hold that the Commissioner properly exercised his broad discretion under the collective bargaining agreement and that his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness,” — and later — “Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act.”

        My understand is that as of now, Brady isn’t suspended until Gooddell take’s action.

        • Your understanding is wrong. That’s not how appeals work. The suspension was overturned, and the appeals court over-turned the overturning, which was on the grounds of abuse of power and discretion. One appeals the previous court’s ruling, and the court can approve the lower court, reject it, or send it back to be retried. A rejection by definition returned the original case to the status quo before that trial. He’s suspended.

  3. Reinstate him and let him play without a helmet.

    The violation – if it even existed – is a parking ticket.

    I’m a New York Football Giants (via NJ) fan and think the punishment is far too harsh. Knowing the way the NFL operates if he tossed Gisele around in an elevator he’d get two games.

    • “Everybody does it?” With the millions involved, cheating is not a misdemeanor. Unless you also think Enron and other big money scandals also should be ignored. I don’t want us to be that jaded or greedy.

  4. A few points:
    The ideal gas law would not have accounted for the deflation. Game time temperature was in the 40s. Now, if we were considering a game played at Lambeau Field with a temperature below zero, there would be reason to consider the gas law.

    Roger Goodell SHOULD deal with this incident more harshly than the domestic violence cases. There is no case against Tom Brady in an actual court of law as there is in most of the other misconducts by players. Roger Goodell should only deal with domestic violence cases severely enough to show that the N.F.L. does not approve of the actions. If the court system fails to convict and properly sentence a person, it should not then fall upon the employer to, in effect, become the prosecutor, jury, and judge of a second trial. The commissionar’s job should foremost be to ensure a fair competition on the field.

    Tom Brady and Bill Belichick both should have been investigated much more thoroughly. Patriots’ fumble statistics show good reason to think that they may have been deflating footballs since the 2007 season. I am surprised no politician looking to get publicity has launched an investigation on behalf of the bettors who have lost billions of dollars over that time by betting against the Patriots.

  5. “Most football fans outside of New England believe he cheated.”

    That’s an interesting thing to bring up. Most people seem to think Michael Brown had his hands up and said “don’t shoot.” Most people think Travon Martin was a child shot in cold blood by a racist white Hispanic.

    As in those cases, should it matter what people removed from the investigation think? Maybe yes because it’s a sport which caters to and relies upon the good wishes of its fans and not a criminal trial in the judicial system? I don’t know.

    • That’s a great point to raise, OB. In both cases, we are talking about public perception, which matters a lot. Because the officer was falsely reported to have executed Brown, police have probably died. Who was to blame? Dorian Johnson, and all the activists and media types who believed a self-interested thug. And he, and they, are at fault and accountable.

      Who is at fault for the belief that Brady cheated. BRADY. And he is accountable.

      • I am just surprised that you are still posting anything having to do with ethics in connection with the NFL* or anyone in it.
        *now shown worthy of being called the NCTEEL, or CTE Enabling League)

        • Imagine that crook A steals your lawnmower. Crook B steals your neighbor’s sports car. Should the police not investigate the theft of your property because someone else had more valuable property stolen?

          I am not aware of a society wide study on C.T.E. How many millions of persons have C.T.E. from automobile accidents and childhood falls? I used to rebel against wearing a seat belt. Millions of us rebelled in that way. How many of us may have harmed our brains by those refusals?

      • Good points. Maybe the parallel is “Who is at fault for the belief that Brady didn’t cheat. Brady. And he is accountable.”

        • Brady is definitely not the one who created a belief that he didn’t cheat. Mostly confirmation bias, rationalizations and his defenders carried that flag. Brady has acted and sounded not only guilty as hell, but proud of it.

  6. The U.S. Court of Appeals for the Second Circuit appeals court reinstated the NFL’s four-game suspension of New England Patriots quarterback Tom Brady yesterday.

    Man, I bet that ruling just knocked the air right out of him.

  7. I just got a first time comment from a Boston fan (based on his email address) named Mark. He wanted to argue about the evidence, and says that all of the various articles by gass experts and physicists have “proved” Brady didn’t cheat.

    ONE: that post doesn’t examine the evidence and isn’t about the evidence. Nor is the evidence as certain as the authors of Brady-defending articles believe, but that is neither here nor there. Brady acted in every way as if he was cheating, behaved in every way as if he thought it would be no big deal if he did cheat, and actively impeded the investigation. That is all true, and that, as I wrote, is enough to suspend him.

    TWO: Mark begins his very first message with this: “You sir are a fool who must have just crawled out from under a rock.” How many times do I have to write this? Start your initial discourse here by insulting me, and you’re banned from the get-go. That is especially true when you ignore the post you are critiquing. That is extra-especially true when your justification for calling me names is an appeal to authority. If you think I am full of it and back up your case, great: I welcome it, but you better be respectful about it, I work very hard, and while I am wrong on occasion, I am not wrong because I am lazy or stupid or unqualified or biased, and it you come out the box claiming any of those things, nobody is ever going to read your brilliant rebuttal. Got that? I would say “Got that, Mark?” but Mark doesn’t get a second chance to be an asshole,

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