Last week Tom Brady announced that he will not seek a stay for his suspension and is done with the controversy known as “deflategate.” While there is still a possibility that the National Football League Players Association (NFLPA) could continue with a request for United States Supreme Court review, the odds of the Court granting that request and hearing the case are very slight. For now, at least, it appears as if the deflategate saga has played out and Tom Brady will have to sit for the first four games of the 2016 season.
In the wake of the case, there seems to be plenty of criticism directed at NFL Commissioner Roger Goodell, including a particularly pointed critique by Sally Jenkins in a column posted by the Washington Post. In her write-up, Jenkins challenged Goodell’s competence and stated that despite their successful appeal of deflategate, Goodell and the League were the real losers in based on the impressions that most hold concerning the way the case was handled. She even stated that the owners now view Goodell as a liability. Jenkins may be right. Perhaps Goodell is no longer viewed by most as a credible commissioner.
Lately, Goodell’s critics seem to overwhelmingly outnumber his supporters. Granted, some degree of criticism comes with the position. Whether deemed too soft or too harsh, almost every call made by a sport commissioner is nitpicked by pundits and fans. Still, this particular commissioner has been a lightning rod for criticism based on his controversial decisions in deflategate, spygate, bountygate, and the way he mishandled the concussiongate. For Goodell, there simply have been too many ‘gates’ for his opponents to forgive.
Public perception of the commissioner matters because he is at the helm of a multi-billion dollar industry depends on consumer interest. Evidence of how NFL consumers perceive Goodell can be found in how the public reacted to the false news of his death earlier this summer based on a tweet from the NFL’s account, which had been hacked. The tweet was quickly removed and Goodell provided proof of life with a tweet of his own, joking, “Man you leave the office for 1 day of golf w/ @JimKelly1212 & your own network kills you off. #harsh.” Goodell’s response was playful and appropriate, two behavioral traits that his critics likely would never associate with the embattled commissioner. Still, for a few hours Goodell had died on social media and the overwhelming majority of comments about him were mean-spirited rather than mournful.
But to play devil’s advocate, pun not intended, perhaps all the negative attention around Goodell and deflategate is actually healthy for the League. It may be cliché, but P.T. Barnum’s remark that all publicity is good publicity might not be too far off in this instance. Despite all the criticism from so many respected writers and despite some very critical statements from more than a few owners, Goodell remains the commissioner. Why is that? Perhaps Goodell remains in power because the League and its franchises have never been more valuable. Furthermore, deflategate lasted, if the case is indeed dead, for more than 520 days; spanning two off-seasons in which the spectacle of deflategate reports kept the NFL relevant and at the center of media and public attention. Take for instance the fact that the district court decision in deflategate dropped on the same day as the first college football game of 2015. Yet, ESPN’s Sports Center that night did not lead with the South Carolina Gamecocks border war win against the North Carolina Tar Heels, it lead with legal experts providing opinions on deflategate.
As for Goodell, perhaps he has grown comfortable as the NFL’s version of Vince McMahon, appropriating the archetype “heel” role made popular by the WWE’s iconic owner. Think back to the slight smirk Goodell leaked when fans booed him during his announcement at the 2016 NFL draft. And as long as the consumers keep consuming NFL products at greater and greater rates, Goodell and his owners have good reason to smirk, if not outright smile.
Still, the apparent death of deflategate provides Goodell with an opportunity to change the narrative on him and the way he has handled the case, if only slightly. Goodell could start by reaching a settlement with Brady and reducing the player’s suspension by two, or more, games. In doing so, he could make a statement that the scientific evidence on ball deflation has moved him to punish Brady only for obstructing the investigation. Not only would this decision make the commissioner look a bit more reasonable, a penalty reduction also makes fiscal sense as the NFL does not benefit from having Brady on the bench for four games. Until the next round of CBA negotiations, Goodell should also appoint independent arbitrators for resolving player grievance disputes. He has assigned independent arbitrators in the past, and he should do so again in all future cases or risk more scrutiny from his critics and the NFLPA. Note that Goodell still retains the authority to vet and select the arbitrators and in doing this he can retain some degree of control over the process while also affording the players a semblance of due process.
But for now, Goodell is not obligated to adopt any of these suggestions because the case was resolved in his favor. Therefore, whether seminal or nonsensical, deflategate’s real legacy has yet to be decided. The case may serve as the catalyst for substantive changes made to the NFL’s collective bargaining agreement by providing the NFLPA with the incentive and mandate to negotiate for better process for player grievance arbitration. Deflategate could also define Goodell’s tenure as Commissioner, a stain on his reputation that is never removed. On the other hand, the case could easily end up as just another forgotten footnote in the annals of the nation’s most popular, for now, professional sports league.
Post by: Thomas A. Baker III, J.D., Ph.D., Ruling Sports Contributor (@DrTab3)
Thomas A. Baker III, J.D., Ph.D. is a commercial litigator turned professor of sports law at the University of Georgia. His research is mostly on the application of commercial laws to sport. Follow him on Twitter @DrTab3.