My December blog post (“Does the NFL need to be more accommodating?”) was the first in what I hope will be a series of blog posts dedicated to examining legal issues related to sport. In this blog post, I will be using the NFL’s investigation and subsequent discipline of the New England Patriots and their quarterback, Tom Brady, for allegedly deflating footballs as a backdrop to review some of the principles of effective investigations.

Much has been made of the investigation into the deflated footballs. The 243-page investigation report was released publically and has been thoroughly examined by the media and fans alike. It brings to mind the comments of the Honourable Justice David Watt of the Ontario Superior Court of Justice who said, “Nowadays, the trial of the accused is merely a sideshow. The main event is the trial of the investigation.”

Last year, I attended an “Investigations Training Workshop” entitled “the Fundamentals of Effective Fact-Finding”. The intense media attention given to the investigation of deflated footballs in the NFL provided me an opportunity to review some of the principles from that workshop while also comparing the NFL investigation to a workplace investigation that was “put on trial” in Canada.

The case that comes to mind is the 2011 Alberta Court of Appeal decision in Elgert v. Home Hardware Stores Limited (“Elgert”). In this case, an employee, Daniel Elgert, was terminated from his position with Home Hardware Stores after an allegation of sexual harassment. The allegations were investigated and the troubling aspects of that investigation formed the basis of the jury’s finding that Mr. Elgert had been wrongfully dismissed.

Some of the principles of investigations that were raised in that case and also may factor into the analysis of the deflated footballs investigation include:

• The investigators must be as independent as possible.
• All potentially relevant issues must be identified and, where appropriate, pursued.
• All relevant witnesses must be identified, segregated, and where practical, thoroughly interviewed.
• The analysis of all the material gathered in the investigation must be objective and based solely on the facts.

The investigators must be as independent as possible.

This was raised as an issue in the Elgert case. Mr. Elgert’s boss happened to be the father of the complainant. While the father did not conduct the investigation, he was a long-time friend of the investigators, who worked in the Home Hardware head offices. The investigators’ relationship with the father of the complainant was an important piece of evidence in the trial decision that ultimately rejected the investigation’s findings.

Similarly, questions have been raised about the independence of the investigator used by the NFL, who is an experienced lawyer. Many commentators have noted that the law firm retained to conduct the investigation has also apparently represented the NFL in various lawsuits related to the concussions of NFL players.

All potentially relevant issues must be identified and, where appropriate, pursued.

One of the issues in Elgert that was not examined by the investigator was whether the sexual harassment complaints may have been made as retribution for negative comments Mr. Elgert put on the complainant’s performance review. The fact that this issue was never explored damaged the reliability of the investigation report.

Similarly, in the investigation into deflated footballs, the issue of the manner in which the footballs were monitored and measured by the NFL, despite advance warning of concerns over inflation levels, was not examined by the investigator. Many have commented that these are significant issues that should have been examined in this investigation. For one, the referee did not maintain control of the Patriots’ footballs before the game – against league protocol. The other key issue is that there is uncertainty as to which pressure gauge the referee used for pre-game measurements of the footballs. Depending on which gauge is assumed to have been used for the pre-game measurements, the half-time measurements may either be fully explained by environmental factors OR evidence of illegal tampering.

All relevant witnesses must be identified, segregated, and where practical, thoroughly interviewed.

This was a significant issue in Elgert. Mr. Elgert was interviewed briefly before his suspension and was not told of the allegations that he was facing. Mr. Elgert was not subsequently interviewed because he insisted on having his lawyer present. Furthermore, certain co-workers were not interviewed who may have been able to provide evidence or background to Mr. Elgert’s contention that the allegations were retribution for a negative performance appraisal. The lack of thoroughness in the witness interviews was significant in the Court’s determination that Mr. Elgert’s dismissal resulting from the investigation was wrongful.

This issue has also been raised in the investigation into inflated footballs with very differing points of view. The investigators contend that the Patriots did not make a key employee available for follow-up interviews for questions about certain text messages that were crucial pieces of evidence. The Patriots contend that the investigator had access to these text messages for the initial interview and that there had been an agreement that multiple interviews would only take place if there were “unanticipated circumstances”. Essentially, the Patriots have questioned the thoroughness of the investigators’ interviews and their need for subsequent interviews.

The analysis of all of the material gathered in the investigation must be objective and based solely on the facts.

If an investigation is to be relied upon, this must be the crucial feature. In Elgert, it was very difficult for the employer to make the case that the investigator’s analysis was based solely on the facts since the investigator did not appear to have gathered all the facts.

With the deflated footballs, the key pieces of evidence were text messages between Patriots’ employees and the pressure measurements of the Patriots footballs both pre-game and at half-time. The Patriots have contended that the analysis involves inferences that were improperly made and not based on facts.

It appears the discipline handed down to the Patriots’ quarterback will be reviewed, first by the NFL commissioner, and then, most likely, a court of law. It will be interesting to see the extent to which these reviews become “a trial of the investigation” rather than “a trial of the accused”. The extent to which the investigation can withstand the scrutiny and demonstrate its adherence to some of the principles of conducting investigations will go a long way to determining whether the discipline will be upheld.