Circuit Court Reverses and Reinstates Suspension After Tom Brady Fumbles the ESI

Nat’l Football League Mgmt. Council v. Nat’l Football League Players Assoc., Nos. 15-2801 (L), 15-2805 (CON), 2016 WL 1619883 (2d Cir. Apr. 25, 2016).

The Second Circuit, citing its deferential standard of review for arbitration awards, reinstated Tom Brady’s four-game suspension for ball tampering, due at least in part to his admission that he instructed his assistant to destroy a cell phone that contained relevant text messages.

During the January 18, 2015 American Football Conference Championship Game between the New England Patriots and the Indianapolis Colts, National Football League (NFL) officials determined that all 11 of the game balls provided by the Patriots were inflated below the minimum allowable 12.5 psi, making them easier to grip.

The NFL retained an independent law firm to “investigate whether there had been improper ball tampering.” This review included text messages between two Patriots equipment officials discussing Patriots quarterback Tom Brady’s “preference for less-inflated footballs” and an exchange for “memorabilia autographed by Brady.” The report also referenced a 25-minute phone call and numerous text messages between Brady and one of those equipment officials on the day the investigation was announced, though they did not routinely communicate. The independent report concluded that it was “more probable than not” that Brady had been “at least generally aware” of the scheme to tamper with game balls, which was unlikely to have occurred without his “approval.” The report also noted that the underlying investigation had been “impaired” by Brady’s refusal to provide any electronic information. It later turned out that on the day of his interview with the investigators, Brady had “instructed his assistant to destroy the cell phone” he had been using, “despite knowing that the investigators had requested information from the phone several weeks before.”

Based on the report’s conclusions and Brady’s “failure to cooperate fully and candidly,” the NFL subsequently imposed a four-game suspension for “conduct detrimental to the integrity of and public confidence in the game of professional football.” Brady requested arbitration. NFL Commissioner Roger Goodell, serving as arbitrator, heard nearly 10 hours of testimony and arguments and reviewed hundreds of exhibits. During that hearing, Brady testified that he had an “ordinary practice of disposing of old cell phones,” although he still had “phones that he had used before and after the relevant time frame.” Goodell found that Brady was not credible and that he had “made a deliberate effort to ensure that investigators would never have access to information that he had been asked to produce.” He therefore inferred “that the cell phone would have contained inculpatory evidence” and affirmed the four-game suspension.

On review, the district court vacated, finding that Brady “lacked notice that his conduct was prohibited and punishable by suspension.” The NFL appealed to the Second Circuit, which in this opinion reversed and reinstated Brady’s punishment. In doing so, the Second Circuit emphasized that within its “very limited” review, it could “inquire only as to whether the arbitrator acted within the scope of his authority” as defined by agreement, not to determine “how [it] would have resolved the dispute.”

Regarding the apparent destruction of the cell phone, the circuit court rejected the district court’s holding that “Brady’s suspension cannot be sustained on the grounds that he obstructed” an investigation. Instead, the court noted that “Brady was punished for failing to cooperate, and it is clear from the Commissioner’s decision that Brady’s cell phone destruction was part and parcel of the broader claim that he had failed to cooperate.” Moreover, the suspension was ruled appropriate since “the law permits a trier of fact to infer that a party who deliberately destroys relevant evidence the party had an obligation to produce did so in order to conceal damaging information.”

Nat’l Football League Mgmt. Council v. Nat’l Football League Players Assoc., Nos. 15-2801 (L), 15-2805 (CON), 2016 WL 1619883 (2d Cir. Apr. 25, 2016).



Brady admitted that he ordinarily got rid of old phones for privacy reasons, which would have been a helpful fact had he not retained phones older than the one he ordered his assistant to destroy. He forgot the one practice that has made him so successful as a quarterback: consistency. As Brady’s “Rule Yourself” commercial for Under Armour emphasizes, “you are the sum of all your training.” Similarly, organizations need to remember that consistency is paramount when it comes to handling ESI, and custodians must be trained to preserve all data, regardless of where it is stored—on computers, servers, mobile devices, or elsewhere.

Questions? We’re here to help you unlock ediscovery mastery.

Contact Us