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  • Deflategate: Will the NFL Fumble Another Internal Investigation?

    Conducting a proper in-house investigation into allegations of misconduct is no simple task – especially at the NFL.

    Last year, the NFL was reprimanded in the public arena for allegedly mishandling the investigation into Ray Rice’s February 2014 assault on his then-fiancée, Janay Palmer. Rice readily admitted to the incident and was suspended for two games by NFL Commissioner Roger Goodell, who was roundly criticized for not imposing a more severe discipline upon Rice.

    In September 2014, after a video emerged on TMZ of Rice punching Palmer and knocking her unconscious in a casino elevator, the NFL immediately suspended Rice from the NFL and released him from the Baltimore Ravens. Although it was later discovered that there was no evidence that anyone at the NFL saw or possessed the surveillance video prior to TMZ’s public release, former FBI Director Robert Mueller “concluded there was substantial information about the incident — even without the in-elevator video — indicating the need for a more thorough investigation. The NFL should have done more with the information it had, and should have taken additional steps to obtain all available information about the February 15 incident.”

    Now, just a few months later, the NFL is once again in the national spotlight for its “Deflategate” investigation. By way of brief background, on January 18, 2015, after the Patriots beat the Colts 45-7 in the AFC Championship, allegations arose that the Patriots intentionally deflated the footballs used in the first half of the game by a pound or two on 11 of 12 game balls.

    Pursuant to the League’s rules, on game day, each team supplies its respective footballs to game officials for use when its offense takes the field. These footballs must be inflated to a minimum of 12.5 pounds per square inch and a maximum of 13.5 pounds per square inch. Under-inflated balls are allegedly easier to throw and grip on the football field and thus, could provide a team, such as the Patriots, with a competitive advantage.

    Upon receiving notice of these allegations, the NFL immediately launched an investigation to “determine the explanation for why footballs used in the game were not in compliance with the playing rules and specifically whether any noncompliance was the result of deliberate action.” On January 20, 2015, Troy Vincent, the League’s senior executive vice president of football operations, initially stated that he was “hoping to wrap that [the investigation] up in the next two or three days.”

    However, in a statement released on January 23, 2015, the NFL expanded Vincent’s initial time frame and acknowledged that the investigation into any alleged misconduct by the Patriots was still ongoing. “Over the past several days, nearly 40 interviews have been conducted, including of Patriots personnel, game officials, and third parties with relevant information and expertise. We have obtained and are continuing to obtain additional information, including video and other electronic information and physical evidence” read the statement. “In the coming days, we expect to conduct numerous additional interviews, examine video and other forensic evidence, as well as relevant physical evidence.” “We have not made any judgments on these points and will not do so until we have concluded our investigation and considered all of the relevant evidence”

    Despite the NFL’s pledge to conduct a thorough investigation – critics are taking issue with the fact that one key person has not been interviewed during the course of the NFL’s internal investigation. Specifically, although more than 40 interviews have already been conducted, Tom Brady, the Patriots’ Quarterback, who arguably would have benefited the most from the under-inflated balls, had not yet been interviewed. Nonetheless, Brady has publically stated that he “didn’t alter the ball in any way,” and has “no knowledge of anything, any wrongdoing.” Coach Bill Belichick has also denied wrongdoing — and stated that the under-inflated footballs resulted from a loss of air pressure naturally caused by “climatic conditions” and changes in temperature and moisture.

    On January 26, 2015, Patriots’ owner, Robert Kraft publicly commented on the Deflategate investigation and demanded an apology from the League. “I am confident that this investigation will uncover whatever the facts were that took place last Sunday and the science of how game balls react to changes in the environment,” Kraft added. “This would be in direct contrast to the public discourse, which has been driven by media leaks as opposed to actual data and facts. Because of this, many jumped to conclusions and made scarring accusations against our coach, quarterback and staff questioning the integrity of all involved.”

    Regardless of the outcome, both the Ray Rice incident and the Deflategate controversy demonstrate how as a result of increased public attention, social media and the 24-hour news cycle, the results of every investigation are subject to review, criticism, and second-guessing. A claim may not result in a lawsuit or negative publicity, but a poorly handled and investigated claim very likely could. In light of this new era of investigatory and media scrutiny, employers must review, and if necessary, revise their internal investigative procedures in order to minimize exposure and negative publicity. Likewise, those charged with the duty of investigating claims of misconduct must be trained on how to properly conduct a prompt and through investigation.

    By the way, on February 1, 2015 the Patriots won the Super Bowl using League issued and controlled game balls. Rookie Malcolm Butler had no comment on the feel of the ball he had just intercepted to win the game.

    If you or your institution has any questions or concerns regarding employment related issues, please contact Hayley B. Dryer at hdryer@cullenanddykman.com or at (516) 357 – 3745.