Monday saw a new wrinkle in the low level scandal that seemingly won’t disappear: Deflategate. New England Patriots’ quarterback Tom Brady will indeed serve a four game suspension for the upcoming NFL season, due to his still unclear role in using deflated footballs during the AFC Championship game in 2014, when the Patriots defeated the Indianapolis Colts 28-0.

A federal court of appeals concluded on Monday morning that NFL Commissioner Roger Goodell’s actions last September in suspending Brady for four games was in fact within his powers, even given the collective bargaining agreement he signed with the NFL Player’s Association (NFLPA) which appealed his original dictum last September.

The latest developments drew praise from the NFL and disappointment from the NFLPA.

After Monday’s ruling, the league posted this official statement:

We are pleased the United States Court of Appeals for the Second Circuit ruled today that the Commissioner properly exercised his authority under the collective bargaining agreement to act in cases involving the integrity of the game. That authority has been recognized by many courts and has been expressly incorporated into every collective bargaining agreement between the NFL and NFLPA for the past 40 years.

The NFLPA was less enthusiastic with the ruling, which involved a three judge panel led by U.S. Circuit Judge Barrington Parker, and stated:

“Our Union will carefully review the decision, consider all of our options and continue to fight for players’ rights and for the integrity of the game.”

The judges cited Brady’s decision to destroy his cell phone the day he was set to have an interview with an investigative team as a leading factor in their ruling.

Even Donald Trump weighed in. At his campaign rally in New Hampshire yesterday morning, he had this to say about the four time Super Bowl champ (and his frequent golf partner): “Leave Tom Brady alone!“

And although this decision can be appealed by Brady and the NFLPA, it looks like the prospect of that long and arduous process will result in a Brady-less Patriots for the first four games of the 2016 season. At least that should leave Brady with plenty of time to sneak in a few more rounds of golf with his buddy Trump.

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

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“Deflategate” seems to have become the NFL scandal that won’t go away. In fact, deflategate has made it all the way to federal court. Patriots superstar quarterback Tom Brady appeared in court on Wednesday to appeal the four-game suspension the NFL deemed appropriate for his role in the scandal; now a judge is involved in the legal scuffle that has mainly been conducted behind closed doors.

Brady was suspended for four games, which was deemed an appropriate punishment for his role in the controversy involving the deflated balls used by the Patriots in the January 18 playoff game against the Indianapolis Colts. The suspension was appealed to Roger Goodell, the NFL Commissioner, who declined to amend it. After a lot of back-and-forth the case has made it to federal court in New York–the NFL is asking the court to uphold the suspension sentence, and the NFL Player’s Association (NFLPA) is working with Brady to ask that the suspension is vacated. The case is being overseen by U.S. District Judge Richard Berman, who publicly questioned both sides yesterday.

Berman appeared to doubt the NFL’s evidence that Brady was involved with the under-inflated balls–pointing out that it lacked a “smoking gun” tying the quarterback to the scandal. During Berman’s questioning to that effect, the NFL representatives did admit that they were missing direct evidence tying Brady to the deflated balls, but instead relied on circumstantial evidence mostly in the form of rather vague text messages. Berman also pointed out that the balls in question didn’t appear to give Brady any competitive advantage, given that he played better with the untouched balls in the later half of the game.

However, Berman did have some concerns about the way that Brady handled the investigation into his actions–particularly the fact that he destroyed his phone. While Brady’s team claimed that he did so in order to protect his privacy, the timing seemed a bit suspect. Brady’s lawyer acknowledged that he could have dealt with privacy concerns in a more prudent way given the circumstances. After Berman questioned both sides, there was a long, private discussion; it’s unclear how much progress was made.

At the end of the day, it does seem like timeliness will be a strong motivation for whatever deal ends up being made between Brady, the NFLPA, and the NFL. There is definitely some pressure to finish this up soon, given that regular season play, and Brady’s suspension, will begin in September. In fact, Berman himself is encouraging them to settle this quickly–if no settlement is reached, both sides will have to appear again in court. As the regular season–and the publicity and profits that go with it loom–it’s in everyone’s best interests to reach a settlement quickly.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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With all the media hoopla surrounding Ray Rice’s domestic violence issues and Adrian Peterson’s child abuse controversy, the NFL diverted its attention from its previously spotlighted concussion policy. In fact, the NFL’s recent media attention to domestic violence issues threatens to expose its player health policy by subjecting it to increased scrutiny as a result of its players’ recent predicaments.

Well, the issue here isn’t domestic violence, but rather Roger Goodell’s non-partisan approach to controversial issues concerning player welfare, accentuated by the NFL’s re-emerging concussion policy. Perhaps Goodell going on this media blitz has taught him a football fundamental; keeping his eye on the ball. Read on to learn about what could become of the NFL’s newest scandal: concussion policies.

When did the NFL become conscious of the unconsciousness of its football players?

In 1994, the National Football League created a committee responsible for overseeing brain injuries to its players after a series of permanent and near-fatal neurological issues to former players. The NFL named Dr. Elliot Pellman, a doctor without any brain-injury experience, the head of its newly-formed Mild Traumatic Brain Injury Committee. Thirteen years later, Pellman stepped down after his highly criticized finding that returning to play after sustaining a concussion did “not involve significant risk of a second injury either in the same game or in the same season.“

Between 2008 and 2010, the bodies of twelve former professional American football players underwent post-mortem evaluations for CTE (chronic traumatic encephalopathy), a degenerative brain-functioning disease, which contributes to suicide, apathy, memory loss, changes in behavior, and depression. The proteins developed in an NFL player’s brain are inherent to a chronic sufferer of Alzheimer’s or epilepsy. Within months the NFL faced legal action from players and responded by implementing a telephone hotline for players to call when forced to play contrary to medical opinion. Nevertheless, by 2012, after unsuccessfully trying to wiggle its way out of the media onslaught, the NFL finally admitted its role in neurological dysfunctions.

PBS Concussion Frontline: CTE occurs when repetitive head trauma begins to produce abnormal proteins in the brain known as “tau.” The tau proteins work to essentially form tangles around the brain’s blood vessels, interrupting normal functioning and eventually killing nerve cells themselves. Patients with less advanced forms of the disease can suffer from mood disorders, such as depression and bouts of rage, while those with more severe cases can experience confusion, memory loss and advanced dementia.

Richard Ellenbogen, a neurosurgeon and co-chairman of the NFL Head, Neck and Spine Committee, characterized these issues this year by saying, “The big issue in concussions is when is it safe to return a player back to the sport, or back to exercising? And the fact of the matter is we really don’t know the correct answer.”

Recently, the NFL supported its players after acknowledging its fault and changing some rules by reaching a settlement requiring the NFL to fund medical exams, concussion-related research, and litigation expenses. However, recent progress was overshadowed when a study of 79 former players yielded that 76 players were diagnosed with CTE.

What changes did the NFL implement to mitigate the consequences of playing professional football?

In light of the head-trauma class-action lawsuits targeting the NFL’s policy, one wonders whether the NFL instituted safe precautionary measures. In 2012, 261 players were diagnosed with concussions in preseason and regular-season injuries. Just a year later, CNN reported a 13 percent drop in these injuries, totaling 228 concussions. This decrease was largely attributed to the 2013 change in on-field rules prohibiting runners and defenders from lowering their heads outside of the tackle box and leading with their helmets when tackling. Additionally, the NFL moved the kickoff yard marker from 25 to 35 yards, to help curb player injuries on kickoff returns.

According to PBS Frontline, the preseason and week one games combined produced 15 concussions. The positions most prone to these injury in the past were wide receivers and cornerbacks, with safeties snatching the number three position. Currently, the NFL heads into its fifth week with 22 concussions to date.

Due to the recent uptick in concussions in light of post-football life injuries, the NFL agreed to settle its pending concussion-centered lawsuits for $765 million to 21,000 former players. Although this may seem exorbitant, the NFL’s tax exemptions and billion dollar revenue schemes amount to a $20,000 a year payout for 30 years to each player. Considering about 30 percent of all current NFL players will suffer from dementia or CTE, this amount represents a minor setback, accounting for only .05 percent of the NFL’s annual revenue.

Should the NFL be doing more to prevent concussions?

Truth is, the problem is exacerbated by us, the fans. Too often we hope for big hits and inside play-action passes giving rise to the bone-crushing plays, which provoke these devastating brain injuries. Although the NFL reduces the impact of these injuries by having doctors perform sideline evaluations and requiring a player to miss at least one play after receiving medical attention, progress has been minimal.

Recent changes in technology provide easier and cheaper alternatives that can detect concussion symptoms. One alternative, such as brain sensors in players’ helmets, can ameliorate some of the sting of future injury because they scan the brain for concussion symptoms during the game. As of now, the NFL does not include this technology in players’  helmets. Instead, the NFL relies on an unaffiliated neuro-trauma consultant (UNTC) who stands on the 25-yard line and waits for an emergency call by the team’s physician. This seems paradoxical, considering the team employs the physician who decides whether to allow the UNTC to evaluate a player. Furthermore, there aren’t any guidelines as to when the physician makes that call, which poses questions regarding the NFL’s regulatory capacity. Who regulates these physicians with unfettered discretion making these calls? Why doesn’t the independent doctor have priority, when football games are a billion-dollar, competitive enterprise?

In 2013, Matt Forte, the Chicago Bears’ running back criticized the NFL’s proposed policy and rule changes by tweeting,

“Last time I checked, football was a contact sport. Calling bank now to set up my lowering boom fund.”

Fans may not want to watch a game diluted by yellow flags, commercials, and contact alternatives. On the one hand, players should be careful, but on the other, pro-football players pull in more than ten times the salary of the average citizen; they are compensated for sacrifices to their bodies. This isn’t to suggest the NFL has not protected its players, but it raises questions as to whether the NFL has taken every step to ensure safety as its priority. Nevertheless, even if sensors are added, or rules are changed, football is football, and fans love it.

Football is inherently a physical sport. People get hurt when they play physical sports. By regulating the hits and plays giving rise to concussions, one might say that the game’s integrity is compromised. The players’ safety is pitted against fans cheering (money, television, and notoriety), which contributes to the NFL’s dilemma, because both are equipoised. The problem of mitigating concussion injuries infiltrates deeper than simply installing sensors in players’ helmets because new technology goes hand in hand with new rules, which lead to more timeouts and less action. For example, all scoring plays are now reviewed. Before, fans felt excitement in hoping their quarterback would summon his offense and snap the ball to kick the extra point.

Although recent changes seem promising because they promote player welfare, one of the biggest problems requires educating the public. Public scrutiny is unforgiving, especially when fans are unaware of why new rules are enacted. In response to public scrutiny, the NFL now provides guidelines for dealing with concussion-related injuries and measures on protecting football players.

What are the latest developments on concussion policies?

Due to the way Goodell handled the domestic violence issue, his cohorts are under the gun to produce some positive changes, especially in light of recent data exposing the NFL’s past efforts in restructuring its concussion policy. Although the NFL was blindsided in some fashion by its players’ conduct, most of which are out of its control, the NFL restructured its policy by pulling players, minimizing competitive interests, and educating the public. Moreover, the NFL’s recent changes reflect its attitude of preserving its players’ welfare. The NFL itself issued a statement last August.

Player safety is the top priority for the NFL. Since its earliest days, the league has continuously taken steps to ensure that the game is played as fairly as possible without unnecessary risk to its participants, including making changes and enhancements to game safety rules.

In recent years, the NFL has modified its playing rules to sharply reduce contact to the head and neck of players. These modifications were made separate from, and in addition to, the league’s longstanding prohibitions against helmet to helmet contact.

Conclusion 

By confronting the issue honestly, settling lawsuits, and changing rules, the NFL has progressed. But at what cost? As the leading example of football everywhere, Goodell will likely return to initiating swift rule changes. In 2007, Goodell’s policy and partial reaction to Austin Collie’s concussion was:

“Medical decisions will continue to override any competitive decisions.”

Recently, the NFL published its Return to Play Policy for concussions and the guidelines for players returning from concussions. After years of debate, it seems Goodell is poised to confront the reality that NFL play permanently injures professional players.

Although domestic violence eclipsed the concussion issue recently, teams scrambled to get in touch with their fans, implementing strategies in an effort to save the organization’s reputation. Progress was made, but the underlying health issue remains. Niles Paul reminded the public of this Thursday night, when he crashed into the ground, motionless. Although the team doctor removed him from the game and issued mandatory time off, the rowdy bar-crowd screams overshadowed his injury, clearly representing the NFL’s dilemma.

Resources

PBS: 76 of 79 Deceased NFL Players Found to Have Brain Disease

MMQB: A Tie’s a Win for the NFL

ESPN: Concussion Case Good for Ex-Cowboys

CNN: NFL Concussions Fast Facts

USA Today: NFL’s Concussion Carousel in Full Motion Week 1

PBS: League of Denial: The NFL’s Concussion Crisis

ESPN: Seaus to Opt Out of Concussion Deal

Bleacher Report: Why the NFL’s Concussion Policy is Failing

Evangelos Siozios

Evangelos Siozios is a student at New York Law School focusing on family law and real estate transactions. He is a 2012 Baruch Honors College Graduate whose interests include writing, exercising, and solving TV mysteries. Contact Evangelos at staff@LawStreetMedia.com.

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NFL Commissioner Roger Goodell may go down in football history as the least liked commissioner with the best intentions. His effort to deter future head injuries among players by fining violent hits has caused his approval rating with players to sink. His effort to aid the health of former players may not be sufficient, according to a federal judge. And his plan to penalize on-field use of the n-word has been called hypocritical by several journalists (here, here and here, to name a few). So why do haters gotta hate on Goodell? The first two issues have fairly intuitive answers; people don’t like paying fines, and settling decades of severe brain trauma probably requires lots of money. The last issue is a bit complicated, but it ‘s probably because taking baby steps to battle prejudice is considered by many to be aggravatingly stupid.

Goodell’s intentions seem honest enough. Last November the Fritz Pollard Alliance (FPA) — an organization that focuses on  supporting diversity in the League — approached Goodell expressing discontent at the volume of players who use the n-word in the NFL. The FPA again broached the issue with the League last month, and Goodell heeded their advice by proposing it to the NFL’s competition committee. The League is expected now to pass a rule penalizing the slur starting next season.

The move has been hailed by some members of the press, but it has also been criticized as hypocritical in light of the NFL’s much more glaring issue of bigotry: the name of the eighty-two year old NFL franchise in the District of Columbia, the Washington Redskins. The Redskins have been considered a derogatory name for decades, but the debate has gathered steam recently due to their trademark battle for the name. The ‘Skins owner, Dan Snyder, has refused to change the name, and Roger Goodell has given his steadfast support to Snyder on the issue.

Why, you ask? If Goodell’s public statements are to be believed, he genuinely believes that the term “Redskins” is more flattering than disparaging. Goodell and Snyder also seem to genuinely believe, despite the lawsuits, that the majority of American Indian tribes support their name. The other less insane argument is that renaming the near-$2 billion franchise could cost both the NFL and the team big time after all of the branding and intellectual property ramifications are considered.

Whatever Goodell’s reasoning is for supporting the Redskins, his stance is nothing new for those in similar positions. In fact, it seems like an American tradition, perhaps as sacred as football, for those of esteemed authority to get tangled in a web of hypocrisy when they’re trying to placate on the issue of tolerance. Our greatest legal minds held in a 7-to-1 vote that “separate but equal” was an equitable way to deal with racial tension and state’s rights. It took Congress 51 years to afford women the same right as minorities in the voting booth. And still some elected officials and judges find civil unions to be adequate for gays who wish to be married. Watershed moments of civil rights often come after years of slow flooding, rather than through large tidal waves. Were Goodell willing to defy this trend and force Dan Snyder’s hand, he might be able to earn the thundering applause he might like in passing the n-word penalty. But instead, the commissioner of football may have to settle for a golf clap.

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Andrew Blancato (@BigDogBlancato) holds a J.D. from New York Law School, and is a graduate of the University of Massachusetts, Amherst. When he’s not writing, he is either clerking at a trial court in Connecticut, or obsessing over Boston sports.

Featured image courtesy of [Staff Sgt. Bradley Lail, USAF via Wikipedia]

Andrew Blancato

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