Tom Brady, NFLPA Granted 14-Day Extension To File Motion For Rehearing By Second Circuit Court

[The Brandon Five]

Disagree.

Absent a contract or a state labor or privacy law to the contrary, employers do have the right to see the contents of your private phone and to punish you with up to and including termination if you refuse.

Please 'splain. This seems backwards. Isn't it the other way around?

 

[Ivan]

Please 'splain. This seems backwards. Isn't it the other way around?

Employees without contracts or collectively bargained rights can be fired at will, they can ask for your newborn if they want. If you don't hand over little Timmy then YOU'RE FIRED!

 

[QuantumMechanic]

Please 'splain. This seems backwards. Isn't it the other way around?

No, it's not.

It flows out of the American doctrine of "employment at will". That means the employer can fire you at any time for any or no reason at all, and you can quit your job at any time for any or no reason at all. Every state except Montana is employment at will.

Given that they can fire you for no reason at all, it logically follows that they can fire you for refusing to let them look at your personal phone.

Now, over the years governments have constrained this. For example, you have the federal civil rights laws that say you can't be adversely acted against because of your race, gender, religion, national origin, etc. States and cities can (and have) gone further, adding things like sexual orientation, gender identity, etc.

Some states go further and say you can't be fired for your appearance. Or because of various lifestyle choices.

And I wouldn't be surprised if there are some states that do say an employer can't look at a personal phone unless the employer has reasonable grounds to suspect certain business-related things.

But the default would be that they can.

 

[cmasspatsfan]

You guys should read Stephanie's site, she has this to say about the phone,

FAQs: Deflategate Second Circuit Rehearing Request - Stradley Law Firm

Yes, the factual focus was very odd, and how they applied the facts to the law in the majority opinion was very troubling because it was based on facts that 1. Were not a part of the record; 2. Were not allowed to be properly refuted.

The "destruction of the phone" thing was a finding that Goodell made up after the appeal based on some evidence that came in, but Brady's team was never allowed to properly refute that as a spoilation issue. In my opinion, it was not spoilation in the sense normally used legally given that Wells never wanted the phone, never placed a hold on the phone, never notified the parties that the phone was going to be the key to a ball deflation case given that they already had texts from other sources.

The best evidence that has been made public suggests that Brady's lawyers asked for the authority of why Wells' should be entitled to the contents of private electronic communications, and that Wells' team didn't get back to them. Crickets. And them blammo, Brady is surprised by this fishing expedition being the crux of the punishment.

The majority opinion cobbling together a spoilation argument that Brady couldn't fully refute after his Goodell appeal decision is bizarre. There is no reason why Brady should have ever known that the phone was going to be the key to anything involving his discipline. ZERO reason. Either in the Wells Report, in Wells' comments after the Report, in the Context Report, none of it. IT IS INFURIATING THAT ONE OF THE BEST QUARTERBACKS IN THE HISTORY OF THE NFL IS BEING SUSPENDED FOUR GAMES IN PART BECAUSE OF A COMPLETELY AVOIDABLE DISCOVERY DISPUTE BETWEEN LAWYERS.

Yes, blame the lawyers. I wouldn't blame Brady's lawyer/agent because how the hades would he have known that the contents of the phone was going to be a crucial part of an equipment violation allegation. That they would ignore everything that the witnesses said, and go all in on this. It's not like he was being accused of sexually harrassing someone with d pix or whatnot.

(I am a super non-fan of the spoilation part of the Brady majority opinion. From the record, Brady had no fair notice from Wells that not providing the electronic information would be taken as an adverse inference and non-cooperation. Brady tried to remedy the issue on appeal to Goodell the best he could given the no notice. Very cooperative. Under oath. Offered all sorts of irrelevant info despite his (what turned out to be well-founded) privacy concerns. Not only was he not given credit for that, Goodell used that attempt at cooperation after the fact to manufacture an intentional spoilation case against him that was a new issue. He couldn't refute that because it was a surprise after the hearing. Then, it goes in front of Berman, where the facts are not supposed to be an issue, and it can't be propertly refuted then because technically, the legal standard for reviewing the arbitration isn't supposed to be a fact finding exercise.)

It is hard to fathom what any judge thinks or will do tbh. The NFL structure of reviewing discipline is weird, but should have the same general fairness considerations as other labor arbitration matters.

 

[RelocatedPatFan]

No, it's not.

It flows out of the American doctrine of "employment at will". That means the employer can fire you at any time for any or no reason at all, and you can quit your job at any time for any or no reason at all. Every state except Montana is employment at will.

Given that they can fire you for no reason at all, it logically follows that they can fire you for refusing to let them look at your personal phone.

That makes sense, but if an employer was going to fire you because they said you wouldn't let them look at the contents of your phone...would be a very bad idea (especially in this day and age). It would be better to give no reason or make some reasonable nonsense up than say, let me look at your phone or you are fired.

all the major companies my friends or I have association with have gone out of their way to do things properly (though don't recall any direct firings).

 

[Danger Zone]

Let us all keep in mind that Favre refused to turn over his cell phone during an investigation about his cell phone.

Brady team: Favre didn't get banned for not turning over phone

 

[RobertWeathers]

Let us all keep in mind that Favre refused to turn over his cell phone during an investigation about his cell phone.

Brady team: Favre didn't get banned for not turning over phone

Of course not....He played for the Jets at the time.

Plus Jenn Sterger was banging 1/2 the team.

 

[Tony2046]

No, it's not.

It flows out of the American doctrine of "employment at will". That means the employer can fire you at any time for any or no reason at all, and you can quit your job at any time for any or no reason at all. Every state except Montana is employment at will.

Given that they can fire you for no reason at all, it logically follows that they can fire you for refusing to let them look at your personal phone.

Now, over the years governments have constrained this. For example, you have the federal civil rights laws that say you can't be adversely acted against because of your race, gender, religion, national origin, etc. States and cities can (and have) gone further, adding things like sexual orientation, gender identity, etc.

Some states go further and say you can't be fired for your appearance. Or because of various lifestyle choices.

And I wouldn't be surprised if there are some states that do say an employer can't look at a personal phone unless the employer has reasonable grounds to suspect certain business-related things.

But the default would be that they can.

I have a question for you Quantum. Referring to Ted Olson's statement that a CBA should grant authority rather than limit it, would the personal phone be off limits because the CBA does not grant the commissioner the authority to take it?

 

[Gumby]

Disagree.

Absent a contract or a state labor or privacy law to the contrary, employers do have the right to see the contents of your private phone and to punish you with up to and including termination if you refuse.

Sorry, gotta throw the ******** card on that one. At least in the general sense that most of us (ianal types) would read your post.

Maybe, IF you used your personal phone for business purposes with proprietary information, they COULD sue for the phone itself. Theoretically i guess any employer COULD ask for all its contents if it was used for business (wrongly). But i would think in most cases termination on those grounds would likely be a good wrongful termination suit. (Of course any competent boss would just build up a pile of other documented reasons first). But i seriously doubt most employers would even want to go down a road that might open the door to years of litigation

But re-reading, you did lawyerly caveat yourself with the "absent labor or privacy law"; which I'm prettysure does exist in Federal as well as probably all 50 States to one extend or another.

 

[Ivan]

You guys should read Stephanie's site, she has this to say about the phone,

FAQs: Deflategate Second Circuit Rehearing Request - Stradley Law Firm

Yes, the factual focus was very odd, and how they applied the facts to the law in the majority opinion was very troubling because it was based on facts that 1. Were not a part of the record; 2. Were not allowed to be properly refuted.

The "destruction of the phone" thing was a finding that Goodell made up after the appeal based on some evidence that came in, but Brady's team was never allowed to properly refute that as a spoilation issue. In my opinion, it was not spoilation in the sense normally used legally given that Wells never wanted the phone, never placed a hold on the phone, never notified the parties that the phone was going to be the key to a ball deflation case given that they already had texts from other sources.

The best evidence that has been made public suggests that Brady's lawyers asked for the authority of why Wells' should be entitled to the contents of private electronic communications, and that Wells' team didn't get back to them. Crickets. And them blammo, Brady is surprised by this fishing expedition being the crux of the punishment.

The majority opinion cobbling together a spoilation argument that Brady couldn't fully refute after his Goodell appeal decision is bizarre. There is no reason why Brady should have ever known that the phone was going to be the key to anything involving his discipline. ZERO reason. Either in the Wells Report, in Wells' comments after the Report, in the Context Report, none of it. IT IS INFURIATING THAT ONE OF THE BEST QUARTERBACKS IN THE HISTORY OF THE NFL IS BEING SUSPENDED FOUR GAMES IN PART BECAUSE OF A COMPLETELY AVOIDABLE DISCOVERY DISPUTE BETWEEN LAWYERS.

Yes, blame the lawyers. I wouldn't blame Brady's lawyer/agent because how the hades would he have known that the contents of the phone was going to be a crucial part of an equipment violation allegation. That they would ignore everything that the witnesses said, and go all in on this. It's not like he was being accused of sexually harrassing someone with d pix or whatnot.

(I am a super non-fan of the spoilation part of the Brady majority opinion. From the record, Brady had no fair notice from Wells that not providing the electronic information would be taken as an adverse inference and non-cooperation. Brady tried to remedy the issue on appeal to Goodell the best he could given the no notice. Very cooperative. Under oath. Offered all sorts of irrelevant info despite his (what turned out to be well-founded) privacy concerns. Not only was he not given credit for that, Goodell used that attempt at cooperation after the fact to manufacture an intentional spoilation case against him that was a new issue. He couldn't refute that because it was a surprise after the hearing. Then, it goes in front of Berman, where the facts are not supposed to be an issue, and it can't be propertly refuted then because technically, the legal standard for reviewing the arbitration isn't supposed to be a fact finding exercise.)

It is hard to fathom what any judge thinks or will do tbh. The NFL structure of reviewing discipline is weird, but should have the same general fairness considerations as other labor arbitration matters.

But but but leterko says the phone is the key to finding the truth and that science doesn't matter?

If only we knew what Brady said to Jimmy Garrapolo in the texts that may or may not exist we would know the truth.

 

[QuantumMechanic]

But re-reading, you did lawyerly caveat yourself with the "absent labor or privacy law"; which I'm prettysure does exist in Federal as well as probably all 50 States to one extend or another.

This very case gives a pretty darned good indication that such a law -- with respect to personal phones -- in fact does not exist federally and not in MA, either. NFLPA/Brady's complaints about the phone nowhere say it was illegal for the NFL to demand Brady's phone. Only that the CBA gave no notice he could be punished for not turning it over. I guarantee you that if the NFL's demand broke some law, that would have been prominently flagged in the NFLPA/Brady's lawsuit.

 

[Wheelman]

Of course not....He played for the Jets at the time.

Plus Jenn Sterger was banging 1/2 the team.

How did Cromartie miss on knocking that one up?

 

[FreeTedWilliams]

This very case gives a pretty darned good indication that such a law -- with respect to personal phones -- in fact does not exist federally and not in MA, either. NFLPA/Brady's complaints about the phone nowhere say it was illegal for the NFL to demand Brady's phone. Only that the CBA gave no notice he could be punished for not turning it over. I guarantee you that if the NFL's demand broke some law, that would have been prominently flagged in the NFLPA/Brady's lawsuit.

I think y'all are confusing what is legal and what would be considered "reasonable" in a court of law. If your employer supplies you with a cell phone for work, then basically it's their phone and they can go through it at will, just like the NFL did with Jastremski's phone. BUT I doubt any court in this country would uphold a firing because the employee denied handing over thier personal cell phone. Now of course some exception could come if say the employer pays the employee a monthly stipend to off set the employee's cell phone bill, so that the employee would utilize his cell phone for work. Other companies (such as technology ones) have rules for forbidding the use of cell phones (mainly for the camera/recording features). But aside from any instance specifically written out in an employee handbook or company regulation that the employee had previusly signed, I seriously doubt any court would uphold a firing because the employee failed to turn over his cell phone. It would surely be found as an unfair labor practice.

Bottom line is that the NFL had no right to Brady's phone or its contents, and if this ruling is not overturned basically any business in the US would be able to accuse its employee of a violation, lie to that employee as to the basis of that violation and then demand the employee turn over his private communications to prove his innocence (from a false charge).

I can only hope that the political hacks that make up the federal judiciary see this for the dangerous precedent it would set and rule for Brady and personal freedom.

 

[QuantumMechanic]

I think y'all are confusing what is legal and what would be considered "reasonable" in a court of law.......I seriously doubt any court would uphold a firing because the employee failed to turn over his cell phone. It would surely be found as an unfair labor practice.

If it is "legal" then it is the court's job and sworn duty to uphold it, regardless of how "reasonable" or not it is.

Remember, it is currently generally legal and upheld for employers to demand your personal Facebook (and other social media) account credentials! Not suprisingly, there is some uproar about this, and so some states are considering (or have) enacting laws prohibiting such demands. But the fact that such laws had to be passed tells you that without them employers could indeed fire people for not handing over their Facebook username and password.

So I bet that there's generally not much problem with an employer being able to demand to look at your personal cell phone.

 

[XLIX]

No. You're missing my point. The patsfans narrative has been "Brady didn't want to turn over the phone because of privacy...Wells had no right to it, blah blah blah." But...he turned over the other two. What was different about that third phone and how does the privacy rationale work if he handed over the other two?

I'm not sur I understand the question but if by "the other 2" you mean McNally's and Jastremski's phones, then those were turned over because they were team-issued and they can't withhold property that isn't their's.

 

[Tony2046]

I'm not sur I understand the question but if by "the other 2" you mean McNally's and Jastremski's phones, then those were turned over because they were team-issued and they can't withhold property that isn't their's.

He's referring to Brady's two other phones. One which he owned prior to the time frame in question (Nov-March IIRC) and the other after.

 

[JarOfMayo51]

If it is "legal" then it is the court's job and sworn duty to uphold it, regardless of how "reasonable" or not it is.

Remember, it is currently generally legal and upheld for employers to demand your personal Facebook (and other social media) account credentials! Not suprisingly, there is some uproar about this, and so some states are considering (or have) enacting laws prohibiting such demands. But the fact that such laws had to be passed tells you that without them employers could indeed fire people for not handing over their Facebook username and password.

So I bet that there's generally not much problem with an employer being able to demand to look at your personal cell phone.

Only scummy organizations would ask for Facebook account credentials etc, I'd never work for one that makes such ridiculous and invasive requests

The audacity to demand such a thing, as if they have a right to read your personal conversations with family, friends and lovers

 

[Gumby]

If it is "legal" then it is the court's job and sworn duty to uphold it, regardless of how "reasonable" or not it is.

Remember, it is currently generally legal and upheld for employers to demand your personal Facebook (and other social media) account credentials! Not suprisingly, there is some uproar about this, and so some states are considering (or have) enacting laws prohibiting such demands. But the fact that such laws had to be passed tells you that without them employers could indeed fire people for not handing over their Facebook username and password.

So I bet that there's generally not much problem with an employer being able to demand to look at your personal cell phone.

I think it is legal for them to ASK, and you are confusing the fact that Go-to-Hell's interpretation of the CBA gives him the right to do whatever he wants to a player (who agreed to this mutual pact) who refuses that REQUEST. But that does not extrapolate out to a general principal that every other employer can use. Most of us do NOT work under a CBA.

 

[Gumby]

I think it is legal for them to ASK, and you are confusing the fact that Go-to-Hell's interpretation of the CBA gives him the right to do whatever he wants to a player (who agreed to this mutual pact) who refuses that REQUEST. But that does not extrapolate out to a general principal that every other employer can use. Most of us do NOT work under a CBA.

PS: And most CBAs dont give a go-to-hell replicate Kim-Sun-Il type power.

 

[Ring 6]

I think it is legal for them to ASK, and you are confusing the fact that Go-to-Hell's interpretation of the CBA gives him the right to do whatever he wants to a player (who agreed to this mutual pact) who refuses that REQUEST. But that does not extrapolate out to a general principal that every other employer can use. Most of us do NOT work under a CBA.

This.
They can ask as part of an investigation. They have no subpoena power so Brady can say no. He cannot be disciplined for not handing over the phone but not doing so can be considered a factor in assessing guilt.
In other words heirs not obligated to give them his phone but denying the request can be considered suspicious and since the NFL doesn't really have to justify its decision can use that as a basis or contributing factor.