Implications of an NFL investigation into Patriots' Deflategate

If the NFL finds that the New England Patriots did in fact use 11 under-inflated footballs during Sunday's AFC Championship Game victory over the Indianapolis Colts, the Patriots and coach Bill Belichick are subject to penalties from NFL commissioner Roger Goodell.

If the NFL finds that the New England Patriots did in fact use 11 under-inflated footballs during Sunday's AFC Championship Game victory over the Indianapolis Colts, the Patriots and coach Bill Belichick are subject to penalties from NFL commissioner Roger Goodell. How stiff would these penalties be, and when would they come down? After reviewing the NFL's constitution, here's a look at the case from a legal perspective.

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The NFL’s review process for Deflategate and the Patriots’ legal defenses

Report: 11 of 12 Patriots footballs were under-inflated in AFC title game

As a starting point, the decision to punish the Patriots will at least initially be in the hands of NFL commissioner Roger Goodell and only Goodell. The Patriots are accused of violating an NFL rule requiring that game balls be inflated to between 12.5 to 13.5 pounds per square inch (PSI). According to ESPN’s Chris Mortenson, 11 of the Patriots’ 12 balls for the AFC title game were under-inflated by 2 PSI. Deflated balls are thought to be easier to catch, although the degree of competitive advantage provided by a deflated ball remains a source of debate. While each team uses its own game balls -- a rule that the NFL may now consider adjusting -- NFL referees test and repeatedly touch the footballs before and during a game. The referees in Foxboro evidently didn’t detect a problem with the Patriots' game balls until Colts linebacker D’Qwell Jackson intercepted a Tom Brady pass in the second quarter and someone on the Colts' sideline raised a concern. The NFL Game Operations Manual directs that those who alter the inflation of a game ball face a $25,000 fine, but Goodell can employ language in the NFL constitution to increase the penalty.

Along those lines, Article 8.13 of the constitution makes clear the Goodell shall review accusations against teams for violating rules "affecting the competitive aspects of the game" and issue an appropriate penalty. Article 8.14 is also potentially relevant, as it authorizes Goodell to hear disputes between teams that "involve or affect League policy."

Goodell’s review of Deflategate is by no means instantaneous. The constitution requires the commissioner to provide "notice and hearing" to the accused team. This means the Patriots should receive a formal hearing process to contest the accusations before Goodell issues a punishment. It is unclear if there is enough time between now and Super Bowl XLIX to provide the Patriots with a fair opportunity to make their case. There are published reports suggesting the NFL will issue a statement on Deflategate by the end of this week, but it may not be a definitive statement.

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The Patriots and their attorneys would likely demand sufficient time to develop and present a legal defense. This is true for multiple reasons. "Extending the clock" on league review of Deflategate would push the ruling's timeline past the Super Bowl and allow the Patriots time to conduct their own investigation and formulate a sensible defense. The team, for instance, might contest the evidence that the balls were under-inflated. The fact that the referees seemed unaware of the under-inflation suggests that the problem was either non-existent or of no consequence. The Patriots might also assert that any under-inflation of the footballs was accidental and perhaps caused by faulty equipment or weather conditions. Alternatively, the Patriots could acknowledge fault but try to pin the blame on a low-level staff member, such as an overly enthusiastic ball boy, a move that wouldn’t insulate the team from NFL punishment but would distance the team’s players and its coaching staff from accusations of wrongdoing. An equipment manager for the University of Southern California football team was fired in 2012 for deflating footballs, a move that seemingly insulated then-coach Lane Kiffin and the rest of the program from the wrongdoing.

Potential punishment for the Patriots

Article 8.13(A) of the constitution details how Goodell could punish the Patriots if he finds fault. In cases involving a violation "affecting the competitive aspects of the game," an appropriate penalty for an offending team can be forfeiture of draft choices and a fine up to $500,000. If Goodell concludes the Patriots willfully broke a rule that is designed to guarantee fair play, he would almost certainly fine the Patriots and probably require the team to forfeit draft picks. There is precedent for this type of penalty. The Patriots were fined $250,000 in 2007 and required to forfeit their 2008 first-round pick due to Spygate, and the New Orleans Saints were fined $500,000 in 2012 and required to forfeit their 2012 and 2013 second-round picks due to Bountygate.

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There is no constitutional language that authorizes a forfeiture or replacing one team in a game with another. This is good news for the Patriots. Under Article 8.14(B), however, if Goodell concludes that a forfeiture of draft picks and a fine would not constitute an "adequate or sufficient" punishment for the Patriots, he could refer determination of an appropriate penalty to the NFL’s Executive Committee. This committee is comprised of one representative, usually a controlling owner, from each of the 32 NFL teams. Goodell is authorized to recommend a heightened punishment that would be reviewed by the Executive Committee. The constitution lists several possible punishment recommendations, all of which are far too severe for Deflategate: cancellation of a team, forcing a team’s sale or declaring a player a free agent.

At the end of the list under 8.14(B), however, the constitution states that the commissioner "can make any other recommendation he deems appropriate." With a three-quarters super majority vote (23 of the 31 NFL teams excluding the Patriots), the Executive Committee can approve Goodell’s recommendation or determine its own punishment.

Whether Goodell or the Executive Committee issues a punishment, the ruling would be "final, conclusive and unappealable." This language would make it extremely difficult for the Patriots to petition a judge to review a league-imposed punishment. The Patriots, like other teams, have also contractually assented not to sue the league or each other.

Why the NFL and its teams would be reluctant to impose an unprecedented penalty

A punishment as draconian as removing the Patriots from Super Bowl XLIX would be unappealing to NFL owners. Even if some of them are upset with the Patriots and believe the team has repeatedly "cheated," they would be wise to consider the unintended consequence of precedent: If the Patriots are ruled ineligible for the Super Bowl or are required to forfeit wins, this penalty could be used against other teams. It is worth noting there are already reports that other teams have been involved with deflating footballs in recent years. The old saying "people in glass houses shouldn’t throw stones" seems applicable.

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A second concern for owners would be potential lawsuits brought by Patriots fans who have purchased Super Bowl XLIX tickets with the expectation that the Patriots will play in the game. The NFL has clearly advertised the Patriots as scheduled to appear in Super Bowl XLIX and is thus vulnerable to false advertising, unfair trade practices and breach of contract claims. While lawsuits brought by fans over not seeing certain players are typically unsuccessful (recall the failed lawsuit against the San Antonio Spurs over Gregg Popovich resting most of his starting lineup against the Miami Heat), the scenario would be different when an entire team scheduled to appear doesn’t play. This would be akin to buying concert tickets to see your favorite band play and then a different band shows up. This practice is sometimes called "bait and switch" and can lead to protracted litigation.

Fans of teams that lost to the Patriots could also file lawsuits. They might argue that the Patriots "rigged" games in violation of consumer protection laws. These sorts of lawsuits usually fail, since courts are often unwilling to rule on application of game rules. A New York Jets season ticket holder unsuccessfully tried such a claim against the Patriots in the aftermath of Spygate.

Belichick’s potential punishment

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​Goodell is also authorized to punish Patriots head coach Bill Belichick if he concludes that Belichick was involved in Deflategate or should have been aware. Belichick, who was fined $500,000 for Spygate, would face a likely fine and possible suspension if Goodell concludes that Belichick oversaw or directed Deflategate. A suspension would be more likely if Goodell finds Belichick dishonest in conversations with him. Recall that Goodell suspended Saints head coach Sean Payton for the entire 2012 season for his role in Bountygate in part because Goodell did not regard Payton as forthcoming during the investigation. If Goodell determines that Belichick is candid about his role, Belichick would be less likely to face a suspension.

If Goodell decides to suspend Belichick, do not expect the suspension to take effect until after Super Bowl XLIX. As noted above, the NFL will likely take some time to fully review the Deflategate accusations and any evidence against specific Patriots coaches and officials. Suspending a team’s coach before a Super Bowl would also be highly disruptive. Obviously, the sports betting community would be up in arms, but of greater concern to the NFL, so might the league’s sponsors. Any action that harsh would not be imposed until next season.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.