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by Sheilla Dingus
December 15, 2016
This piece began as discussion assignment for UNH law professor Michael McCann’s Deflategate class. Professor McCann instructed the class to evaluate the role of the media in the public’s perception of the Deflategate scandal. Today, I had a discussion with free-lance journalist and NFL Spin Zone and Fansided contributor Russell Baxter regarding the challenges journalists face in grabbing the public’s attention when trying to write factual and not necessarily sensational stories. We agreed that people tend to respond most strongly to emotionally charged content, and I believe the perpetuation of false news throughout the election cycle reinforces what I’m about to say. Even though this is a bit lengthy, I think it’s important for the public to understand the struggles journalists face and also how the media can manipulate those willing to react without thinking, so even though this is lengthy, I hope you’ll give it a whirl. While I’m writing through the lens of Deflategate, it’s applicable to just about any subject.
Introduction:
The Deflategate narrative launched when journalists, Bob Kravitz (WTHR Indianapolis) and Chris Mortensen (ESPN) reported that the New England Patriots had played the first half of the AFC Championship game with footballs that were under inflated. The story initially broke on Twitter with this tweet from Kravitz:
Breaking: A league source tells me the NFL is investigating the possibility the Patriots deflated footballs Sunday night. More to come.
— Bob Kravitz (@bkravitz) January 19, 2015
Then, per an anonymous league office source Mortensen stated that 11 of 12 Patriots footballs were under inflated by at least two psi. That incorrect report has come under a great deal of scrutiny, especially in the New England states, and ESPN’s refusal to retract rightly came under fierce attack as well. But before I begin the analysis on the articles I’d like to point something out – Mortensen, at least initially probably felt his report was correct. We know that his information came from the league office. One would think – and hope – an insider from the National Football league would be considered a reliable informant. This brings forward a journalistic dilemma: “how to evaluate the credibility of sources”; which directly intersects with the discussion question, put forth, “Are the sources credible?” My thoughts lean toward believing that Mortensen did believe his source to be reliable, and acting in good faith, his report erroneously launched one of the biggest scandals/stories in sports history.
Also food for thought is “how stringently should confidential sources be protected?” Most journalists rightly adhere to strict rules of confidentiality, but what if a source believed to be reliable simply plants false information, as happened in Deflategate? Does this relieve the journalist of his confidentiality responsibility, and if so to what degree? I’m not certain It does. If a reporter were to divulge a source regardless of the circumstances, it is doubtful a source who needed to remain anonymous would ever trust that reporter again. In my thinking, as much as we’d like to know who planted those numbers, I don’t think Mortensen can be blamed for not revealing his “deep throat.” I do fault him for not coming forward and saying that this previously trusted source gave him the wrong information. As a writer I can’t imagine giving up a source unless under subpoena, and maybe not even then. I’m not sure that I have all the answers but I do think it’s a subject worthy of contemplation.
Old school journalism taught the reporter to gather the “who, what when, where and how,” of a story; in other words, get the facts, and then leave the interpretation of those facts to the reader. In my opinion, Michael McCann’s legal analyses and Andrew Brandt’s business analyses present a neutral viewpoint far better than most other contemporary writers. Most current journalism seems to have moved away from this position. News sources such as Fox News and CNN may agree on what is fact and report the same bullet points, but deliver their stories in diverse ways to lead the reader to agree with the opinion of the journalist. This was especially true of the widely divergent stories that composed the Deflategate narrative.
Part I – Deflategate begins:
(students were instructed to select articles from the beginning, middle and final stages of Deflategate for comparison)
I’ll begin my analysis with Peter King’s MMQB article dated, January 27, 2015, “Deflategate Will Be a Complicated Investigation.”
King’s opening statement:
“In the mystery of the inflation levels of footballs, many key pieces of information are missing. The NFL’s hired investigators will have to rely on forensic evidence to find the truth, along with getting a buttoned-up organization to be forthcoming…”
The tone is now set for the piece, beginning with the reference to the Patriots as “a buttoned-up organization,” that needs to be “forthcoming.” This statement belies King’s neutrality and inserts the supposition that the Patriots must be hiding something, or that they will be difficult to deal with.
Next he quotes a release from the NFL, “We have obtained and are continuing to obtain additional information, including video and other electronic information and physical evidence. We have retained Renaissance Associates, an investigatory firm with sophisticated forensic expertise, to assist in reviewing electronic and video information.” He next presents Wells and Pash as apparent neutrals embarking on a legitimate investigation that will rely heavily on “forensic expertise,” not explaining to the reader that Pash is inside counsel for the NFL and Wells stands to make a handsome profit in drawing a conclusion favorable to his client. Still writing from the premise of Pash and Wells as neutrals, King continues with, “in most investigations, the ones doing the investigating run into brick walls of denials.” He then injects the disclaimer, “Sometimes the denials are absolutely true and on the level. They may well be in this investigation too,” but at this point, a nuanced disagreement with this statement is already in place.
In the next paragraph he makes mention of “a Patriots locker room attendant” entering the men’s room with the now famous bag of balls, and states, “Clearly, Wells is going to have to peel back the curtain on the league’s most secretive team,” further indicating subjectivity in his choice of words.
The next couple of paragraphs quote Wells extensively and relay a supposed desire to keep things “under wraps” until the investigation is completed. Little is said of a Patriots rebuttal based on the Ideal Gas Law outside of a brief reference to Robert Kraft’s “four-minute diatribe defending his coach, quarterback and organization,” as well as a desire on the part of the Patriots to focus on the upcoming Super Bowl.
Next King appears to present a summary of fact. Here is the narrative, [with my comments italicized.]
To recap: All the footballs set to be used in the first half of the AFC Championship Game nine days ago were tested for pressure before the game. NFL footballs need to have between 12.5 and 13.5 pounds per square inch of pressure by league rule. According to Bob Glauber of Newsday, the Colts believed one or more of the balls had less pressure than required during the first half of the game and reported their suspicions to league official Mike Kensil in the press box during the first half. [I’m uncertain as to if emails from Colts personnel to league offices prior to game day were known at this point. If so, King failed to point this out.] At halftime, all the footballs from each sideline were checked for air pressure during halftime by the officiating crew, and, according to ESPN, 11 of the 12 showed up underinflated by approximately two pounds. [King perpetuates the incorrect psi readings even though, I believe at this stage, the correct numbers had been revealed. King also stated that all of the Colts balls were measured and in range, which we now know is incorrect since only 4 Colts balls were measured in actuality, and deflation levels were detected in those also, just not to the same degree as the Patriots balls.] The Colts footballs, I reported, were within the proper range at halftime. The officials inflated the New England footballs to the proper level and sent all the footballs back out for the second half. At the end of the game, all footballs tested in the proper range. [King does not elaborate on what the proper range should have been. Perhaps not enough scientific knowledge had been brought to light at this point, but it seems apparent that King wishes to portray some intentional rather than natural cause for the deflation levels of the Patriots footballs.]
Next King returns to the narrative of the Patriots employee who took the balls into the men’s room for about a minute and a half and infers opinion as to this action being the focus of the incident. He contemplates how long it might take for Wells to complete his investigation and release the notes for the next couple of paragraphs.
Then his focus changes to speculation on the Patriots degree of cooperation: “Now the question is how cooperative the Patriots and their employees will be. Key point: Wells did not have subpoena power in the Miami case. He won’t have it here. Belichick and owner Robert Kraft have pledged their full cooperation. But how full is full?” It appears that King has doubts as to whether or not the Patriots will be forthcoming in the investigation and relays this to his readers. He presents a few questions that he feels the Patriots must answer and then states, “If there is some culpability found, and the Patriots were found to have blocked access to some information pertinent to the case, the league could come down harder on them if the league felt it was stonewalled.” The league later argued this very point as Deflategate unfolded. Was there already talk of this in certain closed circles, or did King simply anticipate correctly from the NFL’s standpoint?
King proceeds with a brief recap of the Dolphins Bullygate scandal in which Wells was also the investigator, specifically focusing on text messages and email messages, and then reiterates, “Again, how cooperative the Patriots will be beginning next week, when they return from the Super Bowl, will be interesting to note,” again shedding doubt on the level of cooperation that might be expected of the Patriots.
King then, shares “key points” from an email he received from Tom Bannister, a chemistry professor from The Scripps Research Institute in Jupiter, FL, which does appear to provide a degree of balance:
“By the ideal gas law, a football inflated to 12.5 at 72 degrees and cooled to 51 degrees [the temperature on the field during the first half] will have a final pressure of 11.43 psi, thus a loss of 1.16 psi … A second factor, the expansion of a football as it gets wet, also leads to a drop in psi. This factor contributes another 0.7 psi in pressure drop … Plain English ultimate conclusion: It would be reasonable to expect, based on both experimental results and ideal gas law calculations, for a pressure drop in excess of 1.5 psi to have occurred within the Patriots footballs in the first half, based on the known game-time conditions and the observation that the footballs were inflated to 12.5 relative psi at room temperature.”
“[But] what about the Colts footballs? We don’t know their initial pressure, but if we assume that they were the maximum legal pressure of 13.5 psi relative pressure, we can calculate the expected pressure drop. Thus the Colts footballs should have been a final pressure of 12.3 psi. The legal lower limit is 12.5 psi. The Colts footballs should have been illegal by 0.2 psi. Question: Would a referee call a reading of 12.3 rather than 12.5 to be clearly out of specifications and illegal? Maybe yes, maybe no. It certainly depends on both the accuracy and precision of the pressure gauge.”
King then tells his readers that he followed up on this by calling Bannister and drawing attention to the missing pieces of the story and quoting Bannister on the same:<
So I called Bannister Monday, and we discussed it. I said the assumption is the Colts footballs were at the higher pressure level, and that’s perhaps why they didn’t flunk the halftime pressure test; but there’s no proof of that. But if the Colts did deliver footballs to the officials at 13.5 PSI, then clearly there’s a chance the pressure level would have hovered around 12.5 PSI, and it’s possible the differing results have to do with where each football that was tested was set before the game.
In other words, there’s much we don’t know.
“There’s a lot of missing pieces in this story,” Bannister said.
Immediately following that statement, King writes his conclusion:
In this case, truer words have never been spoken. Wells has much to discover. I just hope he gets to discover everything that’s important here.
While never blatantly accusing the Patriots of wrongdoing, King skillfully crafts a narrative that leads the reader to believe the Patriots were likely involved with a ball deflation scheme. While he expresses doubt or concern regarding the reliability of the Patriots, he never questions the reliability of the league in charge of the investigation or how independent or neutral the investigators might be. Like an attorney, he leads the “expert witness,” Bannister, the chemistry professor, whose testimony seems favorable to the Patriots, to admit to missing pieces. Direction of testimony in this manner is a courtroom tactic used to place doubt in a judge or jury’s mind, and in this case to place doubt in the reader’s mind by way of a journalist.
Did King have an agenda? It’s impossible to know. What can be discerned is that he gave greater weight to the credibility of the NFL than to the Patriots organization or the independent scientist who was able to explain the ball discrepancies without any type of manipulation outside the weather and science.
Many reports have been written and still continue to be written from the same perspective as King. These of course fueled a social media frenzy and propelled the Deflategate drama into becoming the league’s longest running reality show.
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The second article, one from the mid-point of Deflategate, that I’d like to look at is written by none other than our Professor, Michael McCann, published on January 17, 2016. I chose this article because it comes from the unique perspective of an attorney who also happens to be a journalist, and not only that, probably the most respected voice to come out of the Deflategate saga. So I’d rate the credibility of this piece as very high based on the professor’s unique qualifications coupled with his journalistic responsibilities to maintain a degree of neutrality through his obligations to Sports Illustrated..
Deflategate, one year later: The anatomy of a failed controversy
The first two paragraphs provide a succinct and factual summary of the controversy with allusions to the NFL’s apparent disregard for the science surrounding how the footballs came to be deflated.
Next, under the header, “An allegation of a quarterback cheating began with that quarterback throwing an interception,” McCann begins to fill in the details. He gives benefit of doubt to Colts personnel who claimed the ball intercepted by D’Quell Jackson seemed light, by accepting their account of how Deflategate started, and then explains the NFL rules regarding football inflation along with the prescribed penalty of $25,000. He also states how this could possibly yield a slight competitive advantage.
McCann then explains that the intercepted football was tested three times on the sideline yielding three different results: 11.45 PSI, 11.35 PSI, and 11.75 PSI. which are under the minimum league requirements. He then explains that the remaining eleven Patriots balls along with four Colts balls were tested at halftime.
The next paragraph cites the conclusions of MIT Professor John Leonard, data scientist Nick Kistner, three authors at AEI and University of New Hampshire science professors Michael Briggs and Martin Wosnik that the Ideal Gas Law scientifically accounts for the drop in pressure of the balls. These are very credible, neutral sources. Also supporting the presumption that nothing out of the ordinary occurred was Tom Brady’s repeated statement in the days following the game, “I would never do anything to break the rules.”
Under the heading, “An erroneous tweet inflates Deflategate,” McCann explains how ESPN journalist, Chris Mortensen tweeted information from an anonymous league source that eleven of the Patriots footballs were under-inflated by 2 PSI. Though the information proved to be false, the damage had been done, as the false information penetrated both mainstream and social media leaving a lasting first impression. McCann describes the immediate aftermath:
For Patriots haters, Deflategate seemed like a gift. For many scientists, Deflategate seemed like a lot of hot air. And, for the Patriots and coach Bill Belichick, their focus remained on playing the Seattle Seahawks in Super Bowl XLIX, which the Patriots would go on to win aided by a memorable Malcolm Butler interception.
“The NFL launches an “independent” investigation and the Wells Report.” It should be noted that the use of apostrophe’s subtly indicate the journalist may opine that the word may have been improperly used by the NFL. McCann then explains why the investigation should not be considered independent, as he cites easily verifiable facts:
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The investigation was conducted by Ted Wells (though not stated expressly here, an attorney the NFL has retained in the past) and NFL general counsel Jeffrey Pash
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The scientific firm hired to evaluate the evidence was Exponent, a firm whose work has come under much fire for tailoring their research as to reach conclusions that are compatible with their clients’ desired outcome.
At this point, the journalist gives the reader his conclusion:
Here, the inference was that the NFL—which employs referees who were criticized in Deflategate and the officials who leaked information to media—wanted results showing that the Patriots were at fault.
Next the writer, from the credible perspective of a respected professor of law, begins to breakdown the insufficiencies of the Wells Report. He states that while the “more probable than not” standard was correct in the proceeding, he questions that it was correctly applied in Brady’s case and also brings into question the dubious and ambiguous accusation of Brady’s alleged “general awareness” of a “deliberate plan” to deflate footballs
He then, from his expert standpoint refutes the conclusions of the Wells Report in the following manner:
There was no direct evidence for any of the key accusations in the Wells Report. Not one witness mentioned a deflation plot and not one video or recording revealed such a plot. Instead, the Wells Report reached conclusions by extrapolating circumstantial evidence. Such evidence included increased phone and text communications between Brady and Jastremski following the AFC championship game, a pattern that might sound suspicious unless you consider that the Patriots were also preparing to play in the Super Bowl. Wells also repeatedly highlighted one single text sent by McNally to Jastremski in May 2014—during the offseason when McNally was not working for the Patriots and eight months before an AFC championship game whose participants were unknowable in May 2014. In that text, which was one of hundreds shared by the Patriots, McNally referred to himself in a seemingly joking way as “the deflator,” which the Patriots’ “Wells Report in Context” contends likely concerned McNally’s efforts to lose weight.
Wells also found it notable that McNally took the footballs into the bathroom before the game for one minute and 40 seconds (which, perhaps revealingly, is also consistent with the amount of time it takes to use the bathroom) and that Brady complained about the footballs being too inflated following a Patriots-New York Jets game in October 2014 (but no evidence surfaced that Brady directed or encouraged the footballs be deflated below 12.5 PSI). Wells also disapproved of Brady’s unwillingness to share all electronic and phone information, but no rule compelled Brady—who was disturbed by league leaks—to share such information and Wells would later testify that he would not have punished Brady over his refusal. Wells also had access to texts sent by Brady to Jastremski and McNally when the latter two turned them over.
In short, after a three-month, multi-million dollar investigation, actual proof of a plot to deflate footballs was never found. In the absence of such evidence, it is difficult to understand why Wells found such a plot “more probable than not.”
In the following section, “Goodell punishes the Patriots and Brady, and why the Patriots acquiesced while Brady fought back,” Professor McCann informs the reader of the result of the Wells Report: “Five days following publication of the Wells Report, Goodell doled out harsh punishments on grounds that the Patriots as an organization and Brady as a player had breached the integrity of the game and failed to fully cooperate in a league investigation.”
Next he lends his legal expertise to explain the different legal positions Brady (represented by the NFLPA through the CBA) and the Robert Kraft and the Patriots organization (bound by the NFL Constitution) found themselves in. He demonstrates how Kraft and the Patriots organization had little if any recourse whereas Brady, as a member of the NFLPA had the right of appeal as described in Article 46 of the CBA. He then describes the unfortunate shortcomings of Article 46, which allowed the commissioner to preside over an arbitration or choose a designate, and the NFL’s refusal of any semblance of neutrality:
Brady exercised that right, and despite demands by the NFLPA that Goodell recuse himself as the hearing’s presiding officer, Goodell elected to serve as that officer. In other words, Goodell would decide whether he was correct in suspending Brady for four games
Under the heading, “Brady’s appeal hearing at NFL headquarters and the legal significance of Brady testifying under oath,” Professor McCann explains how Tom Brady voluntarily testified under oath (which would solicit criminal perjury charges should it be later determined that he lied. McCann also uses his legal expertise to contrast this with lying to the media (no consequence.) He then outlined the legal strategies used by Brady’s defense.
“Goodell upholds Brady’s suspension and both the NFL and Brady seek court intervention,” is the next topic addressed. McCann informs the reader that Commissioner Goodell (not surprisingly) upheld his own ruling and despite Brady’s testimony under oath seemed more convinced of his guilt than before; “Goodell stressed that, in his view, Brady was uncooperative and that Brady “destroying” his cellphone (which Brady testified was part of his ordinary practice) indicated guilt.” Next, the in the role of legal analyst, McCann explains how Goodell’s analogy of the alleged misconduct of deflating footballs equating to the use of performance enhancing drugs correctly faced criticism because of the different standards of proof which must be applied, i.e., “suspension for performance-enhancing drugs is in writing, requires direct evidence—a positive test result—and contemplates specific rules for chain of custody and review.”
McCann then describes the “venue shopping” of both parties in a race to have the case heard in district court and the legal reasons behind their objectives. The NFL won the race and the case landed in the Southern District of New York Court of Appeals with Richard Berman assigned as presiding judge. The section concludes with a surprise move by Judge Berman; that of ordering a transcript of Goodell’s arbitration against the wishes of the NFL.
Professor McCann then moves forward with the topic, “Judge Berman hears historic case and rules for Brady.” As a professor of law, McCann was able to accurately summarize and evaluate the proceeding:
It didn’t take long for Judge Berman to signal skepticism about the NFL’s case. He almost immediately expressed doubt that Brady partook in a ball deflation plot. At one point during oral arguments, Judge Berman led NFL attorney Daniel Nash to admit that there was no direct evidence of Brady’s involvement. Judge Berman’s focus on factual questions surprised many legal commentators. Federal law requires judges to accord high deference to the fact-finding of arbitrators (in this case, Goodell) and directs judges to focus on whether the arbitrator utilized a reasonable process for decision-making. Judge Berman, however, repeatedly appeared mystified why the NFL would punish Brady for alleged conduct that lacked factual support.
After unsuccessfully imploring the parties to reach a settlement, Judge Berman announced his decision on Sept. 4, 2015—one day before Brady’s suspension was set to begin. Judge Berman vacated Goodell’s arbitration award…Although federal judges rarely vacate arbitration awards, Judge Berman believed that he was compelled to do so in Brady’s case. Judge Berman concluded that Goodell had “dispensed his own brand of industrial justice” in violation of the law of the shop, which requires fair notice of punishment and consistency in how an arbitrator finds fault and determines punishments.
In the final section, “Brady’s on-field success in the aftermath of Judge Berman’s order as the appeal looms,” McCann factually summarizes the events following the Berman decision, including the performance of Brady in the NFL season to that point, as well as the fact the NFL appealed Berman’s decision to the Second Circuit Court of Appeals.
In his role as legal analyst, McCann explained the process of how an appeal to circuit court works. He then weighed the two possible outcomes:
The odds favor Brady in the appeal. Judge Berman is only reversed about 8% of the time, and although Judge Berman’s order in Brady’s favor can be debated, it was logically argued. Yet don’t count the NFL out; the league has retained a highly regarded legal team for the appeal, and it is banking on the fact that federal judges rarely vacate arbitration awards
Next the professor explained more about the legal process and how the loser of the Second Circuit decision could request an en banc, or full panel hearing, how the Peterson case could possibly come into play, and how the case might eventually be appealed all the way to the Supreme Court. Finally McCann addressed speculation that Brady might file a defamation suit against the NFL, and elaborated as to why this is unlikely to happen.
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For my final article analysis, I decided to do something unusual – break down one of my own pieces. As a writer, I strive to provide accurate and factual content, but unlike Professor McCann, I am not an attorney so I cannot rely completely on my own legal expertise in covering a case such as this. Many writers, whether relative unknowns like myself or reporters for major publications face the same challenge. As an independent journalist, I am not constrained by deadlines that may affect my employment; therefore I have a luxury of time in fact checking that many other writers may not have through no fault of their own.
As an amusing side note, I did catch a prominent writer, and one who normally produces good content in what I perceived to be an error during the course of the Deflategate drama. I wanted to point it out but not in a critical manner so I tweeted at him “nice piece, but if you want to dig a bit deeper”, and then linked to what I felt was more reliable information. He never responded to me, but the following day did a re-write citing the source material I sent. (Just one of my many adventures and misadventures in the Deflategate journey.)
Alternately, I feel a few writers simply cater to what they believe their audience wants to hear in a desire to generate content that will simply utilize emotion to draw a large number of readers. (I’ve discovered on Twitter that my most popular tweets are not the purely educational ones, but the ones that tend to evoke emotion; one of my more popular being a lead in to a Sally Jenkins article: “@sallyjenx says #Deflategate defined Goodell as ‘a political bungler and a dunce.’”)
I didn’t set out to write an epic for this discussion so I’ll begin my breakdown of the last Deflategate piece I wrote. It was written on August 5 just after the Peterson opinion was rendered, and during the wait to see if the NFLPA would petition writ of certiorari following the rejected en banc appeal in the Brady case. The following is a summary of my own thought process when writing.
Impact: Peterson, Brady and the future of the CBA
Like Professor McCann, I wanted to convey my feeling that Article 46 of the collective bargaining agreement is intrinsically unfair. I wanted to relay this in the opening line of my article and at the same time deliver something eye-catching that would emotionally compel the reader to read further
Long ago, in a galaxy far, far away, impartiality and fairness were considered an integral part of the judiciary. Perhaps this is still true in the criminal justice system, but apparently not so in the alternative universe of labor, collective bargaining and subsequent arbitrations.
Next, I presented the tweet with which sports, gaming, and appellate attorney Daniel Wallach broke the news of the long awaited Peterson decision on Twitter:
BREAKING: NFL wins appeal vs. Adrian Peterson. Court rules suspension was improperly vacated by Judge Doty. Bolsters Goodell’s authority.
— Daniel Wallach (@WALLACHLEGAL) August 4, 2016
Feeling qualified to do so since I’d spent a great deal of time studying the Brady and Peterson cases and how they intertwined, I elaborated a bit on the Peterson opinion and briefly highlighted the differences and similarities in the two cases and how they were intertwined through Article 46.
Next, I relied on the court issued opinion to present the key challenges raised through the decision. While displaying the actual language, my summary was rather pointed (albeit factual) and written as such to invoke a response from the reader to compel continued reading, as sometimes legal analyses can tend to be a bit dry.
1.) It is unnecessary for the court to disagree with the arbitrator’s decision unless it fails to draw its essence from the collective bargaining agreement.
2.) Law of the shop is not violated so long as arbitral precedents are applied. Proper application is irrelevant.
3.) The language of a collective bargaining agreement supercedes bias or impartiality. In other words, if impartiality isn’t specifically bargained for, civilly applicable due process becomes irrelevant.
4.) Fundamental fairness is not the responsibility of the court under the Labor Management Relations Act or the Federal Arbitration Act.
Next, I presented the NFLPA’s announcement which voiced their disagreement with the opinion and inferred the possibility of further appeal.
When I began trying to sort out the legalities of Deflategate, I sought out numerous sports law attorneys, law professors, and a few experts in other facets of law on Twitter and followed them religiously in order to gain as much knowledge and insight as possible regarding the intricacies of these cases. Not surprisingly much conversation and debate ensued on the long awaited Peterson decision, so I stayed in the thick of it and will elaborate in a bit how I used it, but I also felt it would be appropriate and insightful to gain some expert commentary, so I called upon Daniel Wallach, who first broke the story and he graciously granted an interview.
He presented the opinion that the NFLPA would continue to pursue both Brady and Peterson, and explained the next steps, much as Professor McCann did in the article I selected for Part II. Next, I focused on his opinion that the cases go far beyond individual players and will “impact every subsequent CBA” should the current precedents be permitted to stand, and that he felt cases such as Brady and Peterson come “once in a decade.”
Moving forward, I focused on the problems Wallach pointed out as major considerations for higher courts:
Wallach stated that “the U.S. Constitution has an ex post facto clause, but the CBA apparently does not.” To simplify, this means that a law or interpretation thereof is applied retroactively, and makes illegal an act that was legal when committed, increases the penalties for an infraction after it has been committed, or changes the rules of evidence to make conviction easier. In both the Brady and Peterson cases, this has been a major focus. In both instances, the district courts observed this constitutional edict, whereas the circuit courts appear to have vacated the same in strict interpretation of the precise wording of the collective bargaining agreement coupled with a staunch refusal to overturn an arbitration award. Abandonment of these safeguards boils down to “anything goes,” as Wallach said.
He emphasized that evident partiality needs to be reexamined by the court system as well as agreement as to what fundamental fairness actually entails. “The Second Circuit questioned whether fundamental fairness applies to labor,” noting that recent court decisions are “treating labor arbitration with greater deference than the non-labor process.” He believes the High Court needs to resolve the question of whether fundamental fairness applies to labor arbitration, or at least “resolve which [fairness] principles do apply.”
“Does the Players’ Association waive constitutional protections,” he questioned. “What does it mean to be evidentially partial? Do you waive any and all claims to arbitrator bias simply by agreeing to a party-selected arbitrator in the CBA? That’s an area in need of refinement,” Wallach stated.
Next, I referred back to the day’s Twitter discussion within the legal community and highlighted a tweet from Dr. Thomas A. Baker III, a law professor at the University of Georgia:
@SheillaDingus @IanPGunn @devansADR I hate defending this process, but I agree with CA2 and CA8. NFLPA let the players down.
— Thomas A. Baker III (@DrTab3) August 4, 2016
This seemed to prompt the question, “Do you feel this was intentional or oversight?” so I asked Dr. Baker, and he replied, ““I think intent. NFLPA wanted other concessions. Don’t litigate for what you should negotiate.” While the advice rendered is indisputably correct, in regard for litigating what should be negotiated, I realized that opinions of respected legal scholars can differ considerably, so I asked queried Wallach in the same manner. His response:
“Not intentional,” explaining that no one would reasonably expect that a high profile discipline case would be handled in such a “dictatorial” manner. He went further to explain that players have little control in this process. “They don’t have much of a choice if they want to play in the NFL.” He reasoned that unlike workers in many other professions, professional football players don’t have a choice of employers, nor do they have the luxury of being able to opt out of a union agreement. If they want to play, “they take what was given to them.”
At this point I felt it would be instructional to the reader to have a bit of background on the CBA and how Article 46 had always been a part of it, but had never been abused prior to Goodell’s tenure as commissioner.
Since it has now been abused, as I did with Professor McCann in Monday’s live discussion, I asked Wallach what he felt could be done, and like our professor, he pointed out the limited resources of the Players’ Association and how their bargaining leverage is far from equal with the NFL. He also cited the brevity of the typical NFL career compared with the stability of a wealthy franchise owner as challenges in CBA negotiation. He also emphasized the importance of the courts, since these challenges are not easily overcome and generally carry a high price.
Wallach concluded the interview with his assessment of the Supreme Court situation:
Currently Federal courts are somewhat deadlocked in balance between pro-labor and pro-management leaning justices; this is especially true of the Supreme Court. Wallach noted that it will be interesting to see how the judicial balance might change with the upcoming election. The Obama presidency has afforded 8 years of liberal leaning judges, and should the tide continue in this direction he feels that the labor stance of the court system will be much stronger in 2021 than it was in 2011. It will be riveting to see how this plays out. A great deal is at stake here, not only for athletes but for organized labor as well. Imbalances and discrepancies in labor and non-labor arbitration rulings need clarification and synchronization.
Since my purpose for writing, (in addition to bringing news of the Peterson decision) was to educate the reader regarding these court decisions, and persuade regarding the importance of court intervention, I attempted to craft a strong finish that would further cement this idea, concluding with the strong words of Robert Katzmann, the Second Circuit judge who issued an opinion of dissent in the Deflategate case, and broadening them a bit:
The American judicial system was founded on the ideals of justice, fairness and integrity. These principles must be preserved, and while current circuit court precedent appears swayed toward technicality, many within the legal profession, including district court judges Richard Berman and David Doty, and circuit court judge Robert Katzmann tend to place a high value on these inalienable rights. To close his opinion of dissent, Judge Katzmann aptly wrote, “It is ironic that a process designed to ensure fairness to all players has been used unfairly against one player.” When you broaden the scope of his statement and substitute “citizen” for “player,” it is easy to see why this issue should be of utmost importance to the Supreme Court. One can only hope the justices agree.
FOOTNOTES:
I’ve attempted in this portion of our discussion assignment to give insights as to what I take into consideration as a writer. I feel many other writers probably use a similar approach. To elaborate further, I try to make every effort to find and utilize credible sources of information. When my article is not focused on an interview, and representing that person as accurately as possible, as this one was, I cite or link to sources extensively in order to (a) avoid plagiarizing the work of another, and (b) allow the reader to determine credibility for him or herself.
Also – while I make every endeavor to present accurate information, in a case such as this, I recognize that opinion will also come into play. Highly qualified experts form opinions – and present them as such, differentiating fact from opinion as much as possible. I try to do the same in my endeavor to create factual, yet persuasive content. One of my goals and purposes in writing is put out compelling pieces that come from a different angle or perspective than other work I’ve seen, as opposed to replicating widespread coverage. (End of class assignment.)
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Conclusion
I hope my arguments demonstrate the importance of fact-checking. Many writers, in order to draw the most readers will manipulate the public by evoking highly emotional content. Other times a writer will present his/her own opinion as news, contorting or omitting facts as evidenced by the Peter King article. In politics, you’re going to get one set of facts from left-leaning outlets and quite a different one from right-leaning ones. I feel it’s important for the public to expose themselves to opinions from both sides of the coin in order to get the most complete picture. Otherwise, it’s not a question as to if someone’s going to be misled, but how often.
Also, regarding emotional content, should a story whether told from a point of bias or simply reported from a neutral standpoint invoke a strong emotional reaction, I’d urge taking a few steps back, removing yourself from the picture, and then forming an opinion. A recent story comes to mind in which I had to remind myself to do this.
When it was first reported that Colin Kaepernick sat for the National Anthem, my initial reaction was, “He did what?” My initial response what to voice some disapproval but, I caught myself and decided to ask the question, “Why did Kaepernick sit?” I read what he said to the media regarding Black Lives Matter. Okay. Next question, “Why did he feel the need to express himself in this manner?” I looked at his Twitter account and went back several months; it seemed he’d been talking about this for quite a long time and probably felt no one was listening, or at least no one cared. Whether you agree or disagree with his manner of expressing discontent, if you look into his statements, his concerns are quite valid. I’m sure he must find it quite frustrating that upon addressing time and time again that his decision to sit, and then kneel is in no way directed at the military, numerous writers and media outlets continue to perpetuate the myth. If one wishes to disagree, that’s fine; discussion of opposing viewpoints can bolster constructive dialog. If you disagree with Kaepernick’s decision not to vote – fine, that’s a fact to which one’s entitled to an opinion. Let’s just make sure our opinions are based on fact and not a writer’s desire to gain or manipulate an audience.
As a writer, I felt it was important to share this perspective. People tend to read headlines and not dig much further. Social media perpetuates this. If you’re still with me, you have my sincere thanks for reading. If you agree with what I’ve said, please feel free to share and spread the word.
Sheilla Dingus founded Advocacy for Fairness in Sports in October 2016, after a stint with Defenders of the Wall, a New England Patriots based blog where she dived deep into the legal aspects of Deflategate. Along the way, she observed many inequities in sports and felt a need to address some of the under-reported stories in sports law. She draws from her background as a former professional dancer, who like many of the athletes she writes about, took an early retirement due to orthopedic injuries. After a return trip to college she worked for a legal software company, with seven years as a Project Manager and Analyst. She brings her analytical skills to the table in breaking down complex lawsuits, and enjoys pursuing her longtime interest in journalism.
