Cellphone privacy, the workplace and NFL superstar Tom Brady

Scott Bomboy

The battle over NFL star Tom Brady’s suspension for tampering with game balls and obstructing an investigation is heading to federal court. So why is the issue of Brady’s reluctance or inability to share his cellphone records getting a lot of attention?


NFL commissioner Roger Goodell upheld Brady’s four-game suspension in part because learned months into the league’s probe that Brady had “destroyed” a Samsung smartphone that had text messages and e-mails the league wanted.

If this sounds like a Fourth Amendment issue, the concept is related. The amendment famously states that people have the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and such information can only be inspected via a warrant.

But as Goodell would be the first person to acknowledge, the Brady investigation as a civil workplace matter doesn’t give the NFL any direct legal power to compel Brady to surrender evidence, such as cellphone records.

In Goodell’s 20-page statement on the Brady matter, Goodell said that “neither the NFL or any NFL member club has subpoena power or other means to compel production of relevant materials or testimony.”

However, Goodell also said that under the collective bargaining agreement between the NFL and the player’s union, the NFL can consider the extent of cooperation of league or club employees during a workplace investigation in evaluating sanctions.

Goodell cited Article 46 of the collective bargaining agreement as granting the commissioner the power to discipline players for conduct “detrimental to the integrity of, or public confidence in the game of professional football.”

The commissioner’s conclusion was that the case evidence “fully” supported that Brady played part in a plan to alter the game balls and that Brady obstructed the investigation by having one of his cellphones destroyed.

The immediate response from Brady and the union was that the commissioner was mistaken.

On his Facebook page, Brady made the case that NFL version of the cellphone destruction was problematic.

“I replaced my broken Samsung phone with a new iPhone 6 AFTER my attorneys made it clear to the NFL that my actual phone device would not be subjected to investigation under ANY circumstances. As a member of a union, I was under no obligation to set a new precedent going forward, nor was I made aware at any time during Mr. Wells investigation, that failing to subject my cell phone to investigation would result in ANY discipline,” Brady wrote.

“I respect the Commissioners authority, but he also has to respect the CBA and my rights as a private citizen,” he said.

Lawyer Jeffrey Kessler for the player’s union made an equally strong statement on Wednesday. “It’s just grasping at straws to try to divert attention from their complete lack of evidence or legal process to justify what’s happened here,” he told USA Today.

As of Thursday, the federal lawsuit from Brady and the union will be heard in New York City, and it will focus on procedural fairness and arbitrator bias claims made by the union.

The current lawsuit also disputes that there is a precedent for suspending a player for non-cooperation, and that the non-cooperation claim about the cellphone was “hyperbolic and baseless.”

Last year, Harvard professor Theda Skocpol looked at some basic lessons from the Brady case after NFL-appointed investigator Ted Wells released his report on the ball-inflation incidents.

“Nowadays, in the Deflategate world, we all had better be on guard. No more loose banter, especially in texts or e-mails or on the phone. Regular employees had better be careful what they say about their bosses in exchanges they think are private — and the higher-ups must be on notice that if their subordinates spread angry or mocking stories about them, someone like Commissioner Roger Goodell may decide those messages are the truth and demand that you hand over all of your communications, as well,” Skocpol said.

Skocpol did preface her opinion piece for the Boston Glove by acknowledging that an e-mail from her son, a Patriots fan, prompted her analysis.

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