Due Process Takes a Back Seat in the NFL -- FAR Back

So Tom Brady, the esteemed quarterback of the New England Patriots, has been suspended for four games into the 2015 NFL season.  The team has been fined and stripped of a draft pick.  And the NFL, in my never-humble opinion, has a lot of 'splainin' to do.

There is this "thing" we celebrate here in the USA, called "due process."  In so many words -- ok, these words, from the Fifth Amendment:  "No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." -- the Framers put forth the concept that your Government and mine may not just take things from you, or imprison you, or otherwise do bad things to you, without having had a series of defined steps to justify their actions done in accordance with the law.

Well, you and I both know that the Fifth Amendment deals with actions by the government, but it is perfectly reasonable to make the logical extension that there is basic entitlement to due process.  It should be a default state even in matters of commercial and employment activity.  One should be able to argue that any "taking of one's property" -- such as a suspension from employment -- should be subject to some level of defense.

Perhaps the standard needs to be really low to do so as an employer; clearly a lot of latitude needs to be granted to the employer.  But there should be a "there" there, and the Brady case is really problematic, which is why this is now the second piece I've been compelled to do.

And here is why it is problematic:

The letting of air out a of a game football, or the adding of additional air to a game football, is actually allowed by the NFL, it is, in fact, written into the league rules.  By the league's mandate that the game ball must be between 12.5 and 13.5 PSI of air pressure, it has expressly given permission to the teams to adjust pressure up or down to suit the preferences of their quarterbacks.  Tom Brady prefers lower pressure in the football; Aaron Rodgers of the Packers prefers a harder game ball to work with.  The league has specifically allowed for that.

In all however-many pages there were of the investigative report by the NFL's minions, there was not a single reference to Tom Brady asking, or even hinting to the equipment people, that the ball should be deflated past 12.5 PSI.  Brady prefers the ball to be softer.  We all know that.  We know that the equipment guy called himself "the deflater."  But we also know that:

(1) Preferring the footballs softer is not an NFL crime
(2) Asking the equipment people to make the ball softer (or harder) is not an NFL crime
(3) The quarterback is not required to arm himself with a pressure gauge

The NFL, in suspending Brady, was completely unable to point to evidence that he had even once asked, suggested or implied to the equipment staff that they deflate the balls to an illegally soft pressure.  Not once.  No request, no hint.

That being the case, then how in the name of God does the NFL justify even a one-game suspension, let alone four?  They do that because they have totally abandoned due process.  They claim -- and this is a large part of their public statement -- that Brady failed to cooperate with investigators, meaning that he would not turn over his cell phone for them to look at his text messages.  Well, the NFL is not the FBI, and Tom Brady is a rather prominent public figure with, let us be candid, a rather prominent public figure as his wife.

If I were he, and thought that the NFL was that intent on punishing me with or without due process, I would have said "Fine.  You tell me the names of the people whose text messages you want to see, and give me a list of those numbers.  I will hold the phone and you can look over my shoulder as I show you the texts to and from those numbers and those numbers only.  You are not the FBI, and you're not getting access to personal communications."  The NFL said they offered "extraordinary" security for his phone.  Yeah, right.

The end result is that the NFL, which has had a series of punishments reversed in court this past year, made an extraordinary lapse, by acting as if they had evidence when they had none.  They have decided that they would suspend Tom Brady for four games for ... well, it is still not clear what; when they suspended Ray Rice (originally) only two games for attacking his fiancee in an elevator.  Go figure.

Obviously Brady is going to appeal the suspension and will likely get this case into a real court a lot sooner than later.  Courts, which have a basic sympathy for due process and the rule of evidence, are not very likely to sympathize with an NFL that issues a suspension (and loss of some major paychecks) without any evidence of punishable action and without a hearing or anything like an internal opportunity for the player to present a case.

I readily expect that the NFL is going to get slapped down for this one.  In fact, I'd be very happy for Brady to sue immediately for additional punitive compensation for the NFL's sloppy work and avoidance of due process in this case.  The Patriots, short an upcoming draft pick and a cool million if this played out, will be right there as well.  And I hope they win and win huge.

I admire the Constitution and the Bill of Rights as much as the next guy.  But I especially respect the due-process clause and what it represents -- the right of the individual to be safe from the tyranny of the powerful.  Tom Brady is a pretty powerful guy himself, but he's just had his legacy, his career and a whole pile of Benjamins threatened by an unchecked league flexing its power.

The courts, I suspect, will "take the 5th" -- in a whole different way.

Copyright 2015 by Robert Sutton
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