Tom Brady, Deflategate, and the Doctrine of Evidence Spoliation

Attorney, The Creekmore Law Firm PC

Tom Brady as he prepares for a game against the Minnesota Vikings. Photograph by Andrew Campbell, used under Creative Commons license.

Tom Brady as he prepares for a game against the Minnesota Vikings. Photograph by Andrew Campbell, used under Creative Commons 2.0 Attribution license.

Every fan of the National Football League (NFL) has heard by now about “Deflategate,” the scandal involving the Super Bowl winning New England Patriots and their star quarterback, Tom Brady.  Following the American Football Conference (AFC) Championship game between the Patriots and the Indianapolis Colts (the game immediately preceding the Super Bowl), the NFL became suspicious that the Patriots, including Brady, may have purposely tampered with the air pressure in footballs used during the game.  This suspicion was only possible based on a rule change proposed years before by Brady and the Patriots, which permitted teams a degree of control over the footballs used by their respective offenses.  The allegation—possibly brought by both the Colts and the Baltimore Ravens, a prior Patriots playoff opponent—was that at some point before kickoff the Patriots were removing air from footballs to provide their quarterback with a better grip on the ball.  Removing air from footballs might also provide an advantage during running plays or after a receiver catches the ball, as it might conceivably reduce the likelihood of a fumble by the offense.  Fast forward and the Super Bowl Champion Patriots and their star quarterback have incurred severe sanctions from the NFL, in large part because of a legal doctrine known as “evidence spoliation.”

Evidence spoliation is a legal doctrine usually arising due to actions in pretrial discovery during litigation.  Before a trial commences, litigants are permitted to ask each other detailed questions and requests for admission, and also are allowed to obtain documents from one another.  In the case where one party asks another for particular documents, and the those documents are unavailable or destroyed as a result of wrongful conduct by the producing party, “evidence spoliation” results.  Under this doctrine, a judge is usually entitled to order sanctions against the producing party, including usually a jury instruction that the documents would have contained damaging information for the producing party if they still existed.

This doctrine make sense not only as a means of promoting fairness during a trial, but as an objective basis for attempting to discover the truth.  If a party subject to an investigatory process purposely destroys relevant documents subject to the investigation, that act in itself suggests the party knows the documents are not good for its case, and therefore the fact finder ought to be able to make a negative inference against the party concerning the subject-matter of those documents.

This is exactly what the NFL did when it decided to suspend Tom Brady for 4 games for his involvement in Deflategate.  In the NFL’s Wells Report detailing its investigation of the matter, one fact of prominent concern was that Brady destroyed his cell phone after the NFL requested to review it as part of the investigation.  At that point, the NFL had some reason to believe that equipment personnel had conversed with Brady about football pressure, a reasonable conclusion based on the evidence it had discovered thus far, and further considering the role a football quarterback serves on a team.  As several commentators put it during the investigation, it was unlikely that a lowly equipment manager would modify the air pressure of footballs without input from the team’s quarterback.  That the quarterback would purposely destroy a cell phone that might shed light on his communications with equipment managers makes Brady’s actions even more problematic.

After the league imposed this sanction through its Vice President of Football Operations, Troy Vincent, Brady and his legal team appealed the decision to the NFL Commissioner, Roger Goodell, in line with the NFL and the NFL Players Association’s collective bargaining agreement.  The Commissioner upheld the four game suspension, emphasizing the fact that Brady purposefully destroyed his cell phone, again invoking the evidence spoliation rule.

With that decision, Brady now finds himself in the United States Federal District Court for the Southern District of New York, where the NFL is headquartered, challenging the decisions made in what was otherwise an arbitration proceeding internally within the NFL.  Where this goes is beyond the scope of my knowledge, but one thing is certain: that Brady seemingly destroyed evidence will not help his case.

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