Practical Law's Deflategate Playbook | Practical Law

Practical Law's Deflategate Playbook | Practical Law

An update concerning the intersection of football and civil procedure, specifically, the litigation arising out of the National Football League's Deflategate controversy.

Practical Law's Deflategate Playbook

Practical Law Legal Update w-000-4970 (Approx. 5 pages)

Practical Law's Deflategate Playbook

by Practical Law Litigation
Published on 11 Aug 2015USA (National/Federal)
An update concerning the intersection of football and civil procedure, specifically, the litigation arising out of the National Football League's Deflategate controversy.
This is a great month for uniquely American pastimes. Major League Baseball's season is in full swing. The National Football League is gearing up for a new season. And, of course, there is litigation about football.
For anyone following the Deflategate case (officially, National Football League Management Council v. National Football League Players Association, No. 1:15-cv-05916-RMB (S.D.N.Y. filed July 28, 2015)) who can't tell the judges without a scorecard, there is no need to worry. From spoliation allegations to venue transfers, from internal investigations to settlement discussions, Practical Law has resources covering everything you need to know.
Deflategate began when the Indianapolis Colts reported to the NFL that they thought the New England Patriots were using under-inflated footballs during the AFC championship game. The Colts may not qualify for Whistleblower Protections under Sarbanes-Oxley and the Dodd-Frank Act, and they lost the game, but they got the league's attention.
The Patriots went on to win the Super Bowl, intercepting the Seattle Seahawks' pass attempt on second-and-goal from the Patriots' one-yard line with less than a minute remaining. No Practice Note, Standard Document or Checklist will ever be able to explain why the Seahawks called that play instead of handing off to Marshawn Lynch.
Meanwhile, the NFL hired outside counsel to investigate the Colts' allegations. Practical Law’s Conducting an Internal Investigation Toolkit could have helped with this task with resources that include:
Just before he was to meet with the investigators, Patriots quarterback Tom Brady allegedly had his assistant destroy the phone he had used around the time of the AFC Championship, thereby rendering inaccessible electronically stored information (ESI) sought by the investigators. This may have included text messages to Patriots employees about the inflation of the footballs used in the AFC Championship game.
Perhaps Brady never received a litigation hold letter like the one in Practical Law's Litigation Hold Toolkit. The toolkit can help attorneys avoid these types of problems with resources such as:
NFL Commissioner Roger Goodell suspended Brady for four games for his (alleged) role in Deflategate and for (allegedly) not fully cooperating in the investigation. Brady appealed under the collective-bargaining agreement between the NFL and the National Football League Players Association (players' union).
Goodell issued an arbitration award denying the appeal and upholding the suspension. The award relied in substantial part on Brady's alleged spoliation of evidence. If that issue is litigated, the parties might want to review resources such as the Spoliation Sanctions by US Circuit Court Chart and the E-Discovery Case Tracker: Sanctions.
On the same day that Goodell issued the award, the National Football League Management Council filed suit in the US District Court for the Southern District of New York seeking to confirm the award. The next day, the players' union, on behalf of itself and Brady, filed suit in the US District Court for the District of Minnesota seeking to vacate the award.
When starting these actions, counsel could have used the Commencing a Federal Lawsuit Toolkit, which offers numerous resources for parties filing suit in federal district court, including:
For information about confirming or vacating arbitration awards, counsel could have drawn on resources such as Practice Note, Understanding the Federal Arbitration Act and Standard Document, Petition to Compel Arbitration (Federal).
The district judge in Minnesota transferred the players' union's action to the Southern District of New York sua sponte, concluding that the first-filed rule governed in the absence of any legitimate reason to have the dispute heard in Minnesota. For parties whose judges do not order transfers on their own initiative, Practical Law offers resources such as Practice Note, Motion to Transfer Venue (Federal) and Motion to Transfer Venue Factors by Circuit Chart (Federal).
The players' union then filed an answer and counterclaims in the Southern District of New York. At this stage of litigation, attorneys can rely on the Responding to a Complaint Toolkit, which includes:
Rather than having the players' union seek a preliminary injunction, the parties requested an expedited schedule. But if they had sought a provisional remedy, Practical Law would have been ready to help with resources such as:
For now, the court has ordered settlement discussions, including an in-court settlement conference on August 12. The parties' preparation for the conference could include the Settling a Lawsuit Toolkit. With resources such as Practice Note, Settlement Tactics in US Litigation and Settlement Agreement Drafting Issues Checklist, it is full of useful advice for attorneys trying to resolve a case.
If the parties cannot settle, the district court must confirm or vacate the award. The losing party will likely appeal that judgment to the US Court of Appeals for the Second Circuit. May we suggest the Second Circuit Civil Appeals Toolkit?