Blowing the Whistle on Deflate-gate

This just in and just in time—A Super Bowl fraud story.

Here’s a review from a very limited perspective of the latest sports fraud story, which is analogous to the world of real big-time government contractor fraud.

Personally, I’m conflicted, because as much as I’m for whistleblowers and against fraud, The New England Patriots are my team. In this case the whistleblowers were a reporter and some members of the Indianapolis Colts, and as far as I can tell they have suffered no serious retaliation for identifying the fraud that allegedly took place.

So, that means we can look at this matter seriously, but without having to think anyone came to real harm over it. It is worth noting, though, that some initial looks at the story included criticizing the Colts for complaining about the matter. That is hardly fair. They complained apparently in a timely enough fashion for the balls to be replaced at half time, after which Tom Brady threw 9 for 9 and the Patriots scored at will. The Colts may have been cheated, but they cannot claim to have lost or been damaged as a result of any deflated footballs.

As I write, some of the facts are still in doubt. We do not know exactly how 11 of 12 Footballs became underinflated (presumably 1 ball is for the kicker and would be inflated as much as possible.) We know that the balls were inspected prior to game time by the referees, as per league rules. We do not know exactly who did what or when.

This might not be enough evidence in the world of filing fraud cases in court, but it is more than enough to raise suspicion and investigate the claims.

In addition, the NFL has specific rules in place as to what level of inflation the balls should be and the Patriots had possession from after the balls were inspected.  That’s similar to a government regulatory scheme which provides basic requirements for what people are supposed to do. Of course the fact that the balls were solely in the Pats’ possession after they had been inspected and passed by the referees also creates strong evidence the Patriots doctored the balls.

If you put the NFL in the position of being the government, was fraud committed against the NFL? (The fans I guess would be citizens the NFL represents, as opposed to the hapless Indianapolis Colts.)

Maybe.

From a False Claims Act law perspective, I see a few issues the defense, the legal defense that is, might raise.

Smart defense attorneys might say there was no material harm here.  The Colts’ Andrew Luck was using his own set of footballs and it’s hard to argue that the Colts offense, which did almost nothing, was affected by this. So, if it’s true that Bill Belichick personally deflated these footballs while Tom Brady made sure they were to his exact liking, is it a material harm to the Colts?

Again, probably not, but that does not answer if it could be a material harm to the NFL and its citizens.

The NFL, like the government, is in many situations a third party. Following the league rules matters even if the league has no particular interest in the outcome of the game. This is similar to situations that occur when the government pays for a contractor to build something for somebody else and in return requires that certain rules be followed. When facilities are built in foreign countries to be turned over as an Aid Project for example, the government requires that our rules be followed. Contracting and bidding have to be handled properly even when they provide grants to build something besides a U.S. Government building. The U.S. has an interest in being sure the integrity of the grant process is followed, even when they are not receiving the benefit of the building.

If a government contractor commits fraud, even if that fraud does not harm the government or the U.S. taxpayers in a palpable, measurable way, the integrity and other interests of the United States government can still be damaged. Here, we have a championship-level game marred by deflated footballs. It may not have affected the outcome of the game (i.e. which team advanced to the Super Bowl) but certainly something was wrong, and it tarnishes the integrity of the NFL. It may even hurt the League with advertising and other tangentially monetary activity.

Even so, there is another pernicious line of defense for the Patriots if the evidence points to their guilt in this matter.

I’m already hearing fans say “everybody does it.”  Everybody does it is not, of course, by itself an excuse.  However, if everybody does do it, what makes this particular situation worth investigating?  And was the NFL really harmed at all?

Aaron Rogers of the Green Bay Packers apparently likes his footballs over-inflated, or so he has said. There have been other reports of former quarterbacks saying doctoring the balls is nothing new. The league has a procedure that puts each team’s set of Footballs in the hands of a non-league official 2 hours before each game. Does the NFL put this structure in place so as to allow for a change to the footballs? Do they want referees to look the other way when a Multi-Million Dollar Franchise QB has somebody take a little air out or put some air in the football? There is evidence that is this is the case because the league’s strange procedure puts the balls back in the hands of the team for 2 hours before every game.

If any more evidence arises that the league deliberately avoids this rule, it could give rise to the “NFL Knowledge Defense,” somewhat analogous to the former Government Knowledge Defense. It used to be, under the False Claims Act, that Government knowledge of fraud was a defense to any such action. The complete defense under this theory has been removed from the law. However, at the same time, it is hard to get the government to prosecute a fraud case when they find that everyone in the government contracting office knew about the problem. It is borderline impossible to proceed on a case of fraud if the Government previously told the contractor that whatever they were doing was alright, but thankfully, most government contracting officers do not wrongfully offer such advice. IF the NFL can be shown to have agreed somehow that deflating the balls was not a problem it could undermine the rule and help get Belichick and company off the hook.

The NFL functions as an almost totally omnipotent body all aspects of government capacity as rule-maker/legislator/contractor/enforcer. There are no separate agencies of the NFL.  So, you do have to wonder if league officials knew and have known what was going on and were somehow complicit in letting QBs do what they want to footballs.  Is there a private unspoken policy that indicates, “yes, indeed we are going to let our greatest league asset Franchise Level Quarterbacks play with the Footballs they like to use”?  Is that fair? Should the rules be changed?

If in fact the NFL lets quarterbacks do what they want regardless of the rules, I do not think they could ever admit it. So, I guess (sigh) the Pats are still on the hook here. In my view, a light punishment of, say, the revocation of a 3^rd round draft pick, would indicate that the NFL knew this was going on everywhere all along but wanted to  do something to restore order. There is no private right for fans to sue analogous to the False Claims Act, except for all of us to stop watching the games, and that is not going to happen either.

In the end, though, as much as New England Fans hate to admit it, the Patriots got caught, the Colts reported the case in timely and appropriate manner, and everybody who is mad that the press or anyone else told us about it has to realize that the NFL either has rules or it doesn’t.  In this case, I think the NFL may take a hit for having poorly-conceived rules or even for choosing not to enforce some rules. Hopefully the NFL will come up with something better so this does not happen again and we can focus on the Game.

Final note to Tom Brady, please insist on using the properly inflated footballs, you were not intercepted in the second half at Indy, so I like your chances better with those footballs anyway.