Published in the New Hampshire Business Review (March 18, 2016)
Lessons that companies can take away from NFL's problematic probe
Football is a game of rules. Even the most talented football teams can be stalled by penalties. Good coaches command discipline, fundamentals and flawless execution to avoid costly infractions. Similarly, in the field of law, investigations often derail based on poor execution.
In early March, a federal court of appeals considered the NFL’s challenge to a judge’s order vacating Tom Brady’s four-game suspension imposed following an independent investigation by a prominent law firm and an arbitration between the NFL and the NFL Players Association. (A final decision is anticipated later this spring.)
The matter began as an NFL investigation concerning allegedly deflated footballs used during an AFC championship game in 2014. In an ironic twist, it is now the NFL’s investigation of the deflation scandal that is under the microscope.
In Patriots Country, the judge’s order vacating Brady’s suspension has been widely acclaimed as an historic exoneration of Brady. And in legal circles, the decision is noteworthy for the many lessons it teaches about the potential consequences of a bungled investigation.
The NFL’s disregard of sound investigative protocols can be analogized to many violations of the basic rules of football set forth in the NFL rulebook. Indeed, the lower federal court tossed multiple yellow flags at the NFL’s process for conducting its reportedly $3+ million investigation:
• Too many players on the field: The court flagged the NFL for publicly announcing an “independent” investigation by an outside law firm and then designating the NFL’s general counsel to serve as co-lead of the investigation. The general counsel edited the law firm’s draft report, and the final report listed the general counsel as co-author.
At arbitration, the NFL illegally blocked cross-examination of the general counsel. The law firm represented that the NFL’s general counsel had played no substantive role in the investigation and that any edits to the draft report made by the general counsel did not impact the law firm’s ultimate findings.
The court roundly chastised the alleged independence of the investigation. It vacated Brady’s suspension in part because the NFL allowed its general counsel to participate in the “independent” investigation and then prevented any factual inquiry into the general counsel’s investigative role.
There are distinctions between types of investigations, such as an internal investigation, a joint investigation and an independent investigation. Each has an important function. Using the wrong labels publicly may have adverse consequences in later proceedings. The direct involvement of in-house counsel in fact-finding during important investigations may expose in-house counsel to future depositions and cross-examination under oath.
• Ineligible receiver downfield: After the NFL had disciplined Brady on the outside law firm’s report, the same firm appeared downfield as the NFL’s counsel in the subsequent arbitration proceeding between the NFLPA and the NFL. A co-author of the final investigative report cross-examined Brady and others on behalf of the NFL. On review, the federal court scolded the law firm’s “dual and seemingly inconsistent roles as ‘independent’ investigator and counsel to the NFL.”
Before commencing any investigation, it is prudent to clearly identify the scope of the investigation, define the roles of each participant, and memorialize an investigative plan. Conflicting roles and unclear responsibilities may undermine the integrity of any investigation and may jeopardize any discipline imposed based on the investigation.
• Offensive holding and unsportsmanlike conduct: The NFLPA requested access to the notes of witness interviews created during the investigation. The NFL denied the request. The court found the association was denied the opportunity to challenge the conclusions of the final report without access to the notes of witness interviews.
The court also found that the general counsel’s change in role from investigator to NFL’s counsel at arbitration gave the NFL greater access to the witness interview notes, valuable impressions, insights and other investigative information.
Investigators should understand that notes taken during an investigation may be deemed material and discoverable in a future proceeding. Those notes should be properly documented and carefully preserved. Any inconsistencies between notes from witness interviews and the findings in a final report must be noted and carefully explained.
• Roughing the passer: Brady was disciplined for his alleged general awareness of the misconduct of two members of the equipment staff for deflating footballs and for his noncooperation. The court ruled that Brady received no notice that he could be disciplined for a general awareness of the misconduct of two other persons or for noncooperation. It also ruled that the severity of the penalty exceeded the scope of penalties that could be imposed under existing policies applicable to football players.
A comprehensive investigative report will directly examine alleged misconduct in light of existing policies and procedures. Prior to commencing any investigation, it is essential to identify all policies and procedures governing the alleged misconduct at issue. A final investigative report should connect any findings of misconduct directly to specific policies prohibiting that conduct. Any penalties imposed for misconduct that cannot be linked clearly to an existing policy or procedure may be subject to challenge.
Regardless of the outcome of the pending appeal, any company or organization conducting an important investigation should avoid these pitfalls arising from the NFL’s investigation of deflated footballs. Just like top athletes, good investigators require sound coaching and fundamentals to ensure success. Make sure your sensitive investigation is not vexed by yellow flags.
Michael Delaney, who served as New Hampshire attorney general from 2009 to 2013, is a director of the Litigation Department at McLane Middleton.