Deflategate: Tom Brady’s Balls and U.S. Labor Law

Fuck the Patriots. This team was a dumpster fire until Bill Belichick sacrificed Drew Bledsoe to Cthulhu, and they’re going to be absolute shit again the second either Tom Brady retires or a fissure opens up on the 50-yard-line in the middle of a game, releasing a fiery hand to drag Belichick back to the pits of Hell from whence he came. Rampant cheaters, every single one of this team’s Superbowl wins should come with a fucking asterisk. I want this franchise relocated to Jupiter.

Furthermore, fuck Tom Brady. The ass on his chin is representative of his entire personality. He once left his pregnant girlfriend for Brazilian supermodel Gisele Bündchen, and he supports Donald Trump. How are people not talking about this? Tom Brady supports Donald Trump. Openly! He’s even acknowledged the reason he’s voting for a megalomaniacal bullfrog that drank seven Red Bulls before reading Mein Kampf: He thinks that megalomaniacal bullfrog will put a putting green on the White House lawn. I’d say this was a joke, but Tom Brady is incapable of laughter—or really any emotional expression other than seething rage. In a perfect world, I’d find the draconian punishment Roger Goodell dropped on Brady’s head to be absolutely hilarious.

But we don’t live in a perfect world. We live in a deeply flawed world, convoluted and full of nuance. And Deflategate is no exception.

For those of you who don’t know—either because you don’t care about the NFL or you’ve been in a coma since 2014—Deflategate (sometimes known by the vastly superior name of “Ballghazi”) was one of the bajillion cheating scandals involving the Patriots. At first, it seems hilarious: It was nothing more than Tom Brady allegedly requesting equipment staff to lower the air pressure in game balls, in order to make them easier to grip in inclement weather. This is not uncommon in the NFL, and everyone thought it was just going to be great for mining “Tom Brady’s deflated balls” jokes before fading into obscurity.

But it never faded.

When the scandal broke following the 2015 AFC Championship Game, the NFL opened an investigation into the under-inflated footballs. Headed by attorney Ted Wells (who had previously worked with the NFL on the Miami Dolphins locker-room bullying fiasco), the probe was meant to investigate whether the original allegations were true and, if they were, how far up the chain of command the deflations went. The findings, released in May of 2015 as the “Wells Report,” stated that the Patriots organization probably had employees intentionally deflate their footballs and that Brady was aware of this. As evidence, the report cited text message conversations between two equipment staff members (named Jim and John, because, Boston), as well as the fact that, after the scandal broke, calls between Brady and one of the two staffers increased in frequency. NFL Commissioner Roger Goodell blasted the Patriots with a frankly obscene fine, docked them two draft picks, and suspended Brady four games for his involvement with the deflations.

However, nobody saw the contents of Brady’s phone. He was suspended entirely on circumstantial evidence. So, naturally, he appealed his suspension to the NFL.

The NFL Players’ Association—which is the players’ union—filed the internal appeal on Brady’s behalf. As Roger Goodell handed down the original suspension and would therefore have a massive conflict of interest, the NFLPA asked him to recuse himself and appoint a neutral arbitrator—especially because they wanted to call him as a witness. Goodell, a man with infinitely more power than common sense and who is notorious for handing out punishments completely at whim, refused. Needless to say, Brady’s suspension held. But here’s the thing: In his statement after the appeal, Goodell made specific mention of the fact that he was upholding the suspension due to Brady’s lack of cooperation. Instead of turning his phone over to Goodell and to the NFL, Brady scrapped it and bought a new one. While this is certainly suspicious, it’s well within his right to do—or so he thought. Because Roger Goodell never once told Brady what he could or could not be punished for. There is nothing enumerated in the Player’s Handbook (essentially the NFL Code of Conduct) about releasing personal conversations to the League, and Goodell did not inform Brady that failure to submit his phone as evidence would be grounds for suspension.

Arbitrary punishment is a violation of federal labor law. Legally, employees in the United States are entitled to advance notice of what constitutes a workplace violation. This is meant to avoid the exploitation of workers, by preventing them from being subject to their bosses’ whims. Furthermore, it helps to limit workplace discrimination by requiring employers to manage all of their employees by the same standards. That way, in theory, a boss can’t just be a complete dick to one specific staff member solely because that staff member is gay. If you think that’s true in practice, I’d like to introduce you to the state of Arizona, but at least this is the general idea behind the laws. Internal punishment for workplace violations is fine, but employers have a duty to make those violations—and their potential punishments—known to their employees. And Roger Goodell failed to perform that duty.

So Tom Brady filed suit. The case was brought in a U.S. District Court (which is the lowest-level federal court) in New York, where Judge Richard Berman overturned Brady’s suspension for the express reason that Brady was never informed of his conduct violations. It seemed straightforward: Goodell has to inform Brady of any and all potential infractions, did not do so, and so cannot punish Brady. But there’s a catch: The most recent collective bargaining agreement between the NFLPA and the NFL essentially gives Roger Goodell complete discretion over player conduct–including the ability to levy disciplinary action as he sees fit. This is because the NFLPA is actually a pile of trash. Generally considered to be the worst players’ union in all major American sports leagues, the NFLPA was literally out-negotiated by Roger Goodell. Roger Goodell has the legal mind of a toddler licking an electrical outlet, and he won the CBA. Seriously, the NFLPA is useless.

But because that uselessness lead to a wank-ass CBA, and that wank-ass CBA allows Roger Goodell free reign to do whatever the fuck he wants, he appealed Judge Berman’s decision in the United States Court of Appeals for the 2nd Circuit—which has jurisdiction over the New York federal courts. And he won. The Court sided with Goodell and the League, reinstating Brady’s suspension. Brady tried to file one more appeal with the same court, but was rejected. Finally, 544 days after this joke of a scandal broke, Brady officially declined to bring his case to the Supreme Court, and Deflategate mercifully ended. But even though our Long National Nightmare is over, its implications will haunt us.

Because the United States is a common law country, court precedence can be binding. Decisions made by the U.S. Court of Appeals for the 2nd Circuit have a mandatory authority over all federal courts within that Circuit—which consists of New Hampshire, Vermont, Connecticut, and New York. Federal courts in those four states have to adhere to the decisions and interpretations of their U.S. Court of Appeals.

Roger Goodell and the NFL won because of a bad collective bargaining agreement, which they negotiated with a notoriously bad union. The U.S. Court of Appeals for the 2nd Circuit held that, if a union agrees to waive a federal labor right, all employees represented by that union lose that right. Federal labor law no longer takes precedent over a bad labor agreement in New York, New Hampshire, Connecticut, or Vermont.  And that’s terrifying. Because employees are, as anybody without an Atlas Shrugged suppository currently dissolving in their rectal cavity can agree, generally more vulnerable than employers. Sure, there are exceptions, but the fact is, it’s much easier for an employer to exploit his or her workers than the other way around. And labor laws are supposed to prevent that exploitation from happening. If those protections can be negotiated away, the laws are rendered useless, and employees become even more vulnerable.

And make no mistake, those protections WILL be negotiated away. Not every union is strong; not every union is created equal. Some industries simply have shit unions, and for a myriad of reasons. Sometimes unions are underfunded. Sometimes their leadership is corrupt or incompetent. Sometimes the industry giants are just so massive and so powerful, that any unionization effort is effectively useless. But the average worker does not deserve to suffer for this; the average worker does not deserve to lose federally-guaranteed protections. And the average worker is going to lose federally-guaranteed protections—at least in industries where their unions just aren’t good enough. Worker protections cost money. Small businesses, who operate on razor-thin margins and might struggle to pay for employee safeguards, would certainly not balk at the chance to negotiate them out of a contract. And corporations—whose only legal obligation in this country is to make as much money for as little cost as fucking possible—will abuse that privilege.

This says nothing, by the way, of any states under the jurisdiction of a different federal circuit. Although 2nd Circuit decisions are not binding, they have a persuasive authority over other federal courts. In other words, a federal court in, say, California is not required to follow a decision made by the U.S. Court of Appeals for the 2nd Circuit in its own, similar, cases. However, that California court can follow the 2nd Circuit decision. This means that Tom Brady’s deflated balls will help dictate the jurisprudence of other states and appeals circuits. Which is especially terrifying in Right to Work states.

In these states, unionization is effectively banned, leaving workers to enter into employment contracts without any collective bargaining agreements or enforcement of labor protections. Employers can essentially fire their employees without reason, and it often becomes the prerogative of the affected employee to prove, individually and in a court of law, that they suffered discrimination. Furthermore, in Right to Work states, employers already tend to offer low wages, while neglecting to give workers access to healthcare or pension funds. For people in these states, federal labor laws are obscenely important, because without access to labor unions, they are forced to negotiate the terms of their own employment. Since average Americans have neither a law degree nor a high-quality contract lawyer at their disposal, they are at a staggering disadvantage to employers who do. And while none of the states in the 2nd Circuit are Right to Work, the Ballghazi decision might just be the beginning. Because now that they know they can get away with it, companies in, for example, Texas could start to negotiate labor laws out of their employment contracts. And if an employee files suit in a U.S. District Court in Texas as a result, there is new,  under-inflated precedent beneficial to the company. We could very well start to see more and more employees losing federal labor protections to bad contracts. And to be honest, we probably will. At least we got some good “deflated balls” jokes out of it, though.

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I Finally Made A Blog

I voted for Bernie Sanders in the primaries.

Okay, now that that’s out of the way, maybe I can talk about Hillary Clinton without someone popping in to shout “Bern the Witch!” within 32 seconds of me posting this to Facebook. I still fully expect three different “#crookedhillary” comments, though, since that’s the easiest way to say, “Hi, I actually have not done sufficient research on Hillary Clinton’s or Bernie Sanders’ policy objectives. Also, I probably hate women, but I’m smart enough not to call Clinton a ‘cunt,’ so I picked a different word that started with the letter ‘C.'”

Now, full disclosure, I have not read all of the Democratic National Convention emails released on Wikileaks over the weekend, because there are 20,000 of them, and fuck you, no. I went to the beach instead. I did read the important ones though, the worst being a “Get Out The Vote” memo that was so racist against Latinx Americans, it gave Joe Arpaio a half-chub. I am also aware that there are reports of Clinton giving the recently-shitcanned DNC chair, Debbie Wasserman Schultz, a campaign position, but I have yet to find this being reported anywhere more reliable than a fucking Gawker comment. If anyone has an actual, reputable source on that, send it to me please.

Additionally, I’ve read the exchanges which the #NeverHillary crowd is holding up as evidence that the DNC stole the election from Bernie Sanders (we’ll just ignore the fact that Sanders’ campaign manager already came out and said that, no, no one stole the nomination; Sanders just lost). And, seriously, how is anyone coming to that conclusion? I really cannot understand that; you have to do some serious mental gymnastics to honestly believe that 1.) Debbie Wasserman Schultz is even capable of stealing an election–or, indeed, capable of anything that isn’t publicly embarrassing herself, and 2.) that she and six other staffers actually managed to do it. Unless there’s evidence in one of the other shitzillion emails that no one has reported on, there is just no way to claim that the DNC stole anything. There is, however, evidence to claim a thousand other legitimate grievances with the party.

There is more than enough evidence, for example, to claim that Debbie Wasserman Schultz was a horrifically incompetent leader who should be left in a cabin in Big Sur with no Internet connection. There is evidence to claim that the DNC’s efforts to appeal to minority groups are tone-deaf at best, and flat fucking offensive at worst. And there is evidence to claim that the Democratic Party’s current plan for courting millennial voters is basically to point at the Republicans and say, “These people are insane, so vote for us instead.” And that’s not good!

With that being said, I can understand some (SOME) of the DNC’s grievances with Sanders. Their biggest issue with him, and the one that should make sense to anyone who stops and thinks about it, is that Sanders was never a Democrat before last year. He caucused with the Democrats, sure. He is obviously a liberal. But he was not a member of the party. It’s completely understandable for DNC leadership to be annoyed with a man who was never a member of their group, until one day he decided he was their new God and that they should bow to him. You would be too! It doesn’t excuse anything they said, and it especially doesn’t excuse the fact that they were stupid enough to use email to say anything they said–because, seriously, did they miss the last nine months of people screaming about Clinton’s server? But, Sanders supporters, you have to accept that Bernie is not a perfect person, not a perfect candidate, and that he frustrates the living hell out of almost everyone with whom he works. That isn’t a good trait to have, by the way.

And you really, really have to accept that blowing up the system is not the answer. There is just too much at stake.

Any changes to the American political system need to be made progressively. There are elections, like, basically every week in the United States; it isn’t just one election every four years. Hell, we elect judges and prosecutors! That’s insane, but we do it! Start by making systematic changes there. Learn who your state and county representatives are, and what their policy goals are. Don’t be afraid to vote for third parties locally–unless they’re Libertarians, in which case you should be very afraid to vote for them. They’re terrifying. Don’t be afraid to vote for Independents in local elections, either. If you agree with what they stand for, you should vote for them.

But for Christ’s sake, don’t just try to burn down the whole establishment. That’s what the UK did, and they ended up with a neo-Fascist Prime Minister, the junkyard fire that is Brexit, and Boris Johnson. For us, we have a Silly Putty golem of Benito Mussolini, cursed with life by a malevolent wizard, and it’s STANDING RIGHT THERE.

And I understand the temptation to vote for Gary Johnson (I actually don’t understand that, but you get the idea) or Jill Stein. But, seriously, look at their policy ideals. I mean, Gary Johnson doesn’t actually HAVE policy ideals. His “policy” would basically amount to him masturbating at his desk while the United States slides into Great Depression-era lassez-faire capitalism. Voting for Gary Johnson is for people who read The Grapes of Wrath and thought “Wow! Hoovervilles seem great! I sure hope I can live in one someday.” It’s for people who played BioShock: Infinite and thought Comstock was the protagonist. Voting for Gary Johnson is for people who don’t think Mark Cuban is fucking annoying.

Jill Stein, though, is just as terrifying for different reasons. Seriously, she basically doesn’t believe in reform. Is the fact that pharmaceutical companies are involved with the FDA approval of drugs produced by said pharmaceutical companies bad? Yes, yes it is. Is the answer to that problem DISMANTLING THE FDA? No, it fucking is not. For another example, Monsanto is an evil company. I think anyone who isn’t voting for Gary Johnson could agree with that. But Jill Stein is not interested in changing the specific commerce laws that allow Monsanto to be so evil with impunity. Jill Stein is interested, instead, in carpet banning GMO foods probably while laughing maniacally like the Kevin Hart rabbit from The Secret Life of Pets. Oh, by the way, that’d be 70 percent of our food, for anyone who didn’t know. Jill Stein wants to ban 70 percent of America’s food. Both of these candidates would be borderline-Trump levels of disastrous.

And even if they weren’t, we cannot risk Trump.

So please, read through Clinton’s policy goals. They’re pretty good! She’s basically the same as Obama, but with slightly worse foreign policy. But she compensates by actually having some solid immigration goals! And she wants free public universities! And a 15 dollar minimum wage! And she’ll pick liberal Supreme Court justices! And she wants gun control! And she funds AIDS research! She’s a good candidate, everyone. She’s not perfect, but she’s good, and she’ll be a good President. So take the good President, and we can all work on improving the American political system incrementally.