Deflategate’s disturbing privacy implications

The NFL Players Association announced on Sunday that it would “not pursue additional appeals” in the Deflategate case. Most of America is delighted about that. And while diehard Pats fans aren’t happy with the outcome, most are suffering from sufficient levels of Deflategate fatigue that they’re ready to move on. And really, is there anything left to say about this absurd morality play?
 
Actually there is. In fact, all the hot takes and op-eds about the Deflategate denouement this past summer missed the most important aspect.
 
No, it wasn’t the Ideal Gas Law, or that Tom Brady actually did better in the second half of the 2014 AFC Championship Game than in the first, or that Roger Goodell shows no consistency in his rulings. As the US Second Circuit Court of Appeals noted in its April 2016 decision, which reinstated Brady’s suspension:
 
“Our obligation is limited to determining whether the arbitration proceedings met the minimum legal standards established by the Labor Management Relations Act.”
 
Fair enough. So let’s review the outcome through the lens of labor law. And in particular, let’s consider the court’s attitude regarding Brady’s “destroyed” cellphone:
 
“The Commissioner consequently drew an adverse inference that the cellphone would have contained inculpatory evidence and concluded … [that] Mr. Brady willfully obstructed the investigation by, among other things, affirmatively arranging for destruction of his cellphone knowing that it contained potentially relevant information that had been requested by the investigators.”
 
And: “It is well established that 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 from the adjudicator. These principles are sufficiently settled that there is no need for any specific mention of them in a collective agreement...”
 
That passage shows a stunning lack of judicial foresight.
 
Forget the stuff about “deliberately destroys relevant evidence.” That’s a red herring. The key phrase is: “had an obligation to produce.”
 
My question is: Why did Tom Brady have an obligation to produce his personal cellphone? This was a civil proceeding, not a criminal one. So this isn’t the equivalent of Aaron Hernandez trying to conceal his cellphone in a murder investigation. (More on this distinction in a moment.)
 
Further, I take issue with the court’s breezy contention that this issue is “sufficiently settled.”
 
The ever-shifting boundaries that define personal privacy in the Internet age make this issue anything but settled. The court was presented with an opportunity to examine a serious labor question: With more and more people commingling personal and professional communications on their private devices, where does an individual’s right to privacy end and his employer’s right to monitor company-related correspondence begin?
 
Far from answering that question, the court didn’t even think to ask it. During the hearing, Judge Barrington Parker had told Brady’s lawyers that by destroying his phone, Brady had shifted the entire focus of the case “from air in a football to compromising the integrity of a proceeding that the commissioner had convened.”
 
Judge Parker then said this: “So why couldn’t the commissioner suspend Mr. Brady for that conduct alone?”
 
With all due respect to Brady’s top-notch legal team, I’d like to field that one: Because US labor law ought to protect an individual’s right to do whatever the hell he wants with his private cellphone without affecting his standing at work.
 
Just think about the implications of Judge Parker’s line of reasoning.
 
For starters, there’s this: In a 2014 case (Riley v. California), the Supreme Court unanimously ruled that it is unconstitutional for police to search the contents of a cell phone without a warrant. Which means, by Judge Parker’s line of reasoning, that Tom Brady deserves less legal protection in a civil investigation by a sports commissioner than a criminal suspect like Aaron Hernandez would have in a murder investigation. 
 
And maybe, given the ultimately trivial nature of the Deflategate charges, you’re OK with that. Maybe you think a murder suspect should have greater legal protection than a guy accused of probably knowing that somebody who sort of worked for him might have let a little air out of a football.
 
But forget for a moment that we’re talking about Tom Brady and Roger Goodell. Let’s say that we’re talking about you and your boss. And let’s say that one day a colleague at a different branch within your company accuses you of an egregious breach of ethics.
 
You think you’ve done nothing wrong, so you’re not especially worried at first. Your boss conducts an investigation, which includes examining all emails that you sent and received using the company’s server while you were at work. You’re a little uncomfortable with that—sometimes you make jokes that don’t translate well to people who don’t know you—but you concede that the boss has the right to read all company emails.
 
The process is awkward and embarrassing, but after several weeks your boss can’t find any evidence to support your accuser’s charges. You figure that’s the end of it.
 
But no. Even though no one else—not even your original accuser—wants to pursue the matter any further, your boss persists. He seems obsessed with proving that you did something. He says that he also wants to quell the ongoing water-cooler speculation because it’s hurting the company’s morale. Never mind that he’s the one fueling all that speculation by prolonging the investigation and discussing it openly instead of handling it quickly and quietly.
 
You love your job and just want to go back to focusing on your work. The constant questions and requests for documents are creating a distraction and grinding you down. It feels as if the boss has gone from conducting an investigation to pursuing a vendetta against you.
 
Finally, after another day of lost productivity, your boss says there’s only one way to ease his mind so he can fully trust you again. He needs to examine your personal cellphone to make sure you didn’t send any incriminating text messages.
 
You decide that enough is enough. You don’t want your boss having access to private messages that you sent to your wife or your parents or your friends or your broker or your doctor. That would be far too invasive, especially given the ham-handed, adversarial way your boss has conducted the investigation so far.
 
So you refuse to give him your phone.
 
He fires you on the spot. His McCarthyesque logic is that you must have done what you’ve been accused of doing, otherwise you would have seized every opportunity to prove your innocence.
 
You sue for wrongful termination, figuring you have a slam-dunk case.
 
But you lose.
 
Why? Legal precedent. Just read the US Second Circuit Court of Appeals ruling in NFL v. Brady, April 2016.