I don't follow the NFL or root for or against any of its teams. But the media's breathless coverage of Deflategate and the role of the NFL's biggest star, New England Patriots quarterback Tom Brady, got my attention.
This was not because it was a football story. Instead, it was because it is a tale of a classic cover-up by cheaters caught red-handed. In law, the precedents for the tale are several. The lessons for business executives and their lawyers are there for the learning.
As a boy, I read Sir Arthur Conan Doyle’s stories about English super-sleuth Sherlock Holmes, who used his immense talents to solve crimes that seemed indecipherable to everyone but him. By themselves, the titles of his stories promised intrigue: "The Five Orange Pips." "The Man with the Twisted Lip." "The Adventure of the Blue Carbuncle." If Doyle were alive and writing today, the title of a story inspired by Deflategate would be easy: "The Footballs, the Needle, and the Bathroom.”
The essence of it is this. NFL rules require footballs in competition to be inflated to a certain pressure. The rules allow each team 12 balls to be used during games. Before the games, the officials check the pressure of the game balls before allowing them onto the field.
Brady is known to prefer the lowest end of the allowable pressure, so he can grip the ball better. During late 2014, he was unhappy with the inflation level of the Patriots' game balls. In private, he made his feelings known to a couple of Patriots locker room flunkies, Jim McNally and John Jastremski, who were in a position to do something about it as the playoffs approached. And do something about it they did.
McNally, the man responsible for taking the Patriots' game balls to the field, made a little detour after he left the officials' room in Gillette Stadium in Foxborough, Mass. on Jan. 18. He carried a bag of Patriots footballs. The game that was about to begin would determine whether the Patriots or their opponent, the Indianapolis Colts, would go to the Super Bowl.
McNally (whose self-styled nickname was "the deflator") walked into a bathroom, shut the door, and spent about a minute and 40 seconds in there alone. His removal of the game balls from the officials' room was an unprecedented breach of protocol which alarmed the referee, Walt Anderson. When he came out, he delivered the balls to the field, and the game began.
Suspicious after intercepting a Brady pass of a ball that seemed under-inflated, the Colts asked for a halftime inspection of the game balls. All of the Patriots' balls were below the allowed pressure; none of the Colts' balls were. The Patriots won the game, and later won the Super Bowl. Brady himself earned Most Valuable Player honors, as an audience of over 120 million watched.
The ensuing investigation triggered an investigation, conducted by the venerable Paul Weiss law firm of New York. Paul Weiss interviewed witnesses, reviewed cellphone records (including text messages exchanged between McNally and Jastremski), and hired an expert consulting firm to opine on the possible ways in which air could have innocently escaped the Patriots' game balls. Brady denied any wrongdoing.
The text messages revealed that McNally and Jastremski felt pressure from Brady to deflate game balls and that Brady rewarded each man with cash and other gifts. It would have been good to see Brady's text messages, and so Paul Weiss asked for them.
Shortly before he sat for an interview with Paul Weiss, however, Brady had his cell phone destroyed; during the prior four months, Brady had exchanged nearly 10,000 text messages. In the end, the Paul Weiss lawyers concluded that it was "more probable than not" that McNally had deflated the game balls with a needle in the bathroom and that Brady was "at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls." The NFL suspended Brady for four games to be served in the coming season.
As a lawyer, I have seen this behavior too many times during discovery in civil litigation. So often, the cover-up exceeds the sin being covered up. The party that destroys evidence while it is under subpoena (or other request) looks bad. This is because of what we all know: If the files had exculpatory material in them, they would be produced, not destroyed. The corollary is inescapable: the destroyed evidence would likely incriminate the destroying party.
In California courts, this reality is so important as to warrant a uniform jury instruction to that effect. CACI 204 provides: "You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party."
Richard Nixon, or someone acting at his direction, infamously destroyed an 18½-minute tape recording in the White House during the Watergate scandal. Enron notoriously shredded company documents during its own scandal. Tom Brady is no Nixon or Enron, and the idea that a football game (even the Super Bowl) is remotely as important as our democracy or the value of shareholders' investments in a publicly traded company is silly.
Still, business executives in trouble and their lawyers have something to learn from Tom Brady. Don't destroy records when they are under subpoena or litigation hold. If you've made a mistake, own up to it and tell the truth. And, by the way, don't cheat in the first place.