Sure, we have some resolution in the whole Deflategate scandal now that New York federal judge Richard Berman vacated the NFL's 4-game suspension of New England star quarterback Tom Brady. Brady -- largely redeemed, Hall-of-Fame legacy safe and sound. The NFL -- another legal smackdown, highlighting its rudderless direction and need for serious self-correction. The problem is we still know nothing about what really went down. Did anyone actually tamper with the footballs? Was Brady involved? Did the NFL have it out for Brady and the Patriots? Did the NFL fan a little bit of firestorm?
Unfortunately, Judge Berman's decision skips over all of that -- leaving us in the dark once again in the latest NFL scandal.
As Judge Berman made clear, we certainly cannot count on the NFL to clear things up. The league and its fearless (feckless to some) leader seemingly did everything in their power to go after Brady hard, truth be damned, and yet still coming up empty. So where does that leave us. In short, it's still a complete mess with neither side as a practical matter able to prove what they need to do in order to be fully vindicated. The NFL cannot establish what actually happened to the footballs because the Patriots' insiders who know the truth have no incentive to come forward and every incentive to stay quiet if they ever want to work (or, for that matter, order some clam chowder and a whoopie pie) in New England again.
Similarly, although the Patriots have circumstantial evidence of an NFL smear campaign, they have no way to force the NFL to disclose who has been leaking false information to the press. And, whether this was all just a set-up orchestrated by NFL employees with loyalties to other teams who cannot regularly beat the Patriots on the field.
This is a dilemma that often occurs in situations where a powerful entity is involved -- be it the multi-billion dollar enterprise that is the NFL or the most successful quarterback in the history of the game. Those who know what happened face incredible personal and professional risk if they come forward. Even worse, once they blow that whistle, they can do little to force a full-fledged investigation.
If we have learned anything from this latest pro-football kerfuffle, it is the NFL needs a full-fledged whistleblower program modeled after the False Claims Act (FCA) laws. These are the laws that the federal United States, and many states and cities have enacted to help guard against fraud and foul play. They protect whistleblowers from retaliation and give a financial incentive (a portion of any Government recovery) to step out and be heard. They have resulted in billions of dollars being returned to the Government and exposed serious dangers to our health and well-being with a steady stream of courageous individuals blowing the whistle on wrongdoing in the health care, defense, securities, banking, construction and many other industries. Why not the NFL too?
With this type of protection and incentive, maybe that ball boy who was standing in the corner when Brady (hypothetically) told New England locker-room attendant Jim McNally and equipment assistant John Jastremski what to do with that needle would come forward. Maybe that NFL intern who (hypothetically) heard the bigwigs talking about how they were going to punish Brady for winning all of those Super Bowls would feel safe speaking out. And while we're at it, what about the (hypothetical of course) NFL insider who could reveal what the NFL has known but refused to share about concussions and brain trauma. Or the players or team trainers who (again hypothetically) could give us the full scoop on how many players are doping to gain that extra edge. This is not just about the silly saga of deflated footballs. It is also about shining a light on the much more serious issues facing the league concerning player health and safety.
It is about forcing a full-fledged airing of these issues even if the NFL doesn't want to. That is one of the key provisions of the FCA laws. They allow whistleblowers to bring a case forward even if the Government is not interested. How many Patriots fans would love the chance to force ESPN's Chris Mortensen or Stephen A. Smith to reveal who at the NFL fed them inflammatory details, some which were false, which further stoked the controversy? How many folks living south and west of the Hudson River would love to have a way to get Jastremski or McNally to testify in the full light of day?
There are obviously ways the NFL would have to tweak this whistleblower regime to fit the pro football environment. Issues of whistleblower retaliation, confidentiality, rewards, channels of reporting misconduct, league and team liability, etc., would all have to be worked out. But, none of this fine-tuning would present any real obstacle to the all-mighty NFL implementing a whistleblower system if it sees fit. With the power over salary cap, draft picks, financial penalties, player eligibility, team ownership, and just about everything else that relates to pro football on and off the field, what the NFL wants, the NFL usually gets.
Think about it. Wouldn't it be nice to finally have a mechanism to allow complaints of misconduct to be investigated by a truly independent panel beholden to neither the NFL nor the NFL Players Association. So send in the whistleblowers and give them the power and purpose to go after fraud and wrongdoing in the game we all love, even if, especially if, the NFL leadership, the union and the teams would just as soon see the problems swept under the carpet.
And let us all get back to focusing on what happens on the field, rather than the wranglings and machinations of a bunch of lawyers.
Tim McCormack and Gordon Schnell are partners at Constantine Cannon LLP, where they both specialize in representing whistleblowers who use the False Claims Act, the Dodd-Frank Act and other whistleblower statutes to help the United States and various states recover money from companies that have engaged in fraud. As you might have guessed, they are lifelong fans of the Patriots and Giants, respectively.