Documentary film critically examines 'Deflategate,' exposes science-for-hire industry, Big Sport marketing machine

At UMass Law School, from left to right: yours truly, sporting a Brady kit gifted by my Torts students, night class of 2018; author, commentator, and comedian Jerry Thornton, former NFL employee Scott Miller; Lemon Martini producer and UMass Law alumna Ami Clifford; and Julie Marron, acclaimed director of Happygram and Four Games in Fall.

The UMass Law School community had a special treat of an event last week: an invitation-only, friends-and-family pre-screening of the director’s cut of the forthcoming documentary, Four Games in Fall, from director Julie Marron and Lemon Martini Productions.  See the film’s home page and trailer here, or the trailer below.  The film is in essence a documentary about “Deflategate,” the 2015 scandal in the National Football League in which New England Patriots Quarterback Tom Brady was accused of orchestrating the under-inflation of footballs to rig games in his favor in the Patriots charge to Superbowl victory.

UMass Law alumna Ami Clifford is a producer of Four Games in Fall, putting her legal education to creative use making—as the tagline for Lemon Martini puts it—“social justice documentaries with a twist.”  Marron is an acclaimed Massachusetts director fresh off the roaring success of her 2015 documentary about mammograms and breast cancer, Happygram.  For a Q&A after the screening, Marron and Clifford were joined by documentary interviewees: Scott Miller, a New Yorker and former NFL employee; Jerry Thornton, WEEI radio personality and author of From Darkness to Dynasty: The First 40 Years of the New England Patriots; and Andrew E. Wilson, a marketing and management professor at St. Mary’s College of California.

Four Games in Fall did not disappoint.  Marron and Clifford explained in the Q&A that neither one of them had more than a passing interest in the NFL and the Patriots when they set out to make the documentary.  But they were attracted to exactly that aspect of the Deflategate scandal: that so many people without a vested interest in Patriots football, with nothing to gain by sticking their necks out, seemed to be taking an interest in the case.  Roughly as Clifford said it, when a lot of very smart people in the sciences, with at best ordinary interest in American football, started looking at the Deflategate case and the penalties exacted against Brady, and saying “something smells here,” she and Marron started paying attention.  They had no agenda, but Four Games in Fall definitely raises red flags—or, I guess, throws yellow ones—on what seems to be NFL commissioner Roger Goodell’s hell-bent persecution of star-athlete and national celebrity Brady and football’s Superbowl-winningest team.

Therein lies the subtle brilliance of Four Games in Fall, which takes full advantage of the documentary format not only to examine Deflategate on its facts and merits, but to place the affair in a critical context from social, commercial, scientific, and legal perspectives.  Reminiscent of Morgan Spurlock’s classic Super Size Me, Four Games features Professor Wilson to explain marketing phenomena such as “anchoring” and “confirmation bias.”  Those concepts help to explain why the conventional wisdom about what actually happened in Deflategate runs so contrary to the facts.  Following the dollar, Marron furthermore examines the enormous market power of the NFL, which amplifies its messaging and suppresses contrary views from the audience and the players’ union.  In this vein, the film brings in the NFL’s reluctant engagement with the mounting evidence of CTE injury and critically exposes the "science for hire" industry.  Meanwhile, science--the real stuff--reveals the startling imprecision behind NFL rules such as ball-inflation standards.  Those standards are so faulty as not to account for on-field temperature in a sport played in late autumn and early winter.

Against this backdrop, Brady’s case winds through the courts, where yet another story unfolds: the un-level playing field of pervasive arbitration agreements, affecting even NFL players, and the Second Circuit’s judicial-typical capitulation to boilerplate contract at the arguable expense of fundamental fairness.  Brady dropped his case before trying to press on to the U.S. Supreme Court, disappointing many observers, including, at that time, he confessed, Thornton.   But the film and the panelists explained a number of reasons why it made no sense to continue.  Brady’s mother was diagnosed with cancer, which did not bolster the QB’s will to litigate.  Yet just as importantly, Brady’s legal team must have realized that its case, implicating NFL players and their union in opposition to the enormous power of the NFL, was sui generis.  It did not make for the kind of broad-implication inquiry that the Supreme Court would likely want to see before exercising discretionary review.  In truth, the many NFL players who are not stars do face physical hardships out of proportion to their remuneration and job security, just like an average factory Joe.  At the same time, NFL players are not Willy Loman, and the NFL is not--quite--E Corp.

Nevertheless, Deflategate, informed by Four Games in Fall, leaves a bad taste in the mouth.  We do, as Americans, seek to identify personally with our sporting heroes, however aspirational the comparison.  Tom Brady’s retiring temperament (supermodel spouse notwithstanding) and boyish charm have the feel of an underdog American David who took on the NFL corporate Goliath and lost.  Whether one agrees or not with the physical and social scientists who populate the frames of Four Games in Fall, it’s hard to conclude on the legal end that Brady and the Patriots got a fair shake.  And with so many of us worker bees—tied up in arbitration contracts we did not meaningfully agree to and don’t really want, beholden to the disproportionate and opaque oligopolistic power of mammoth corporations for just about everything we do, including our employment and especially lately our healthcare—Brady’s loss unexpectedly hits home with all the punch of a 300-pound offensive tackle.

Our hero should have vanquished Goliath and failed.  If Tom Brady can’t beat the monster, what hope is there for the rest of us?

Four Games in Fall is setting off soon for the festival circuit and will come to consumers through one media channel or another shortly thereafter.  See it.  You don’t have to be a fan of American football; I’m not.  This film is about so much more.

 Four Games in Fall trailer.

The Death of Civil Justice: It Was a Good Run, 900 years

Opening panel at Anglia Ruskin University Sports Law 2016: Leonardo Valladares Pacheco de Oliveira, Ian Blackshaw, Tom Serby, Andrew Smith, and Antoine Duval

Last week I was privileged to attend a tremendous one-day Sports Law program at Anglia Ruskin University in Cambridge, UK, focusing on the question, “the future of ‘the legal autonomy’ of sport.”  Experts in the academy and in practice gave timely and informative commentary on contemporary sport governance from perspectives of contract law, politics, and dispute resolution. 

Though justifiably through the lens of sport, the program raised a broader and important question concerning the future of civil justice.  Dispute resolution in international sport today is the province of the Court of Arbitration for Sport (CAS), in Lausanne, Switzerland, under the very loose supervision of the Swiss Federal Tribunal.  CAS has a complicated relationship with international sport governance organizations such as the IOC and FIFA.  Certainly the court is not their stooge.  At the same time, through the magic of contract law, the mandatory use of the arbitration system carries down through the echelons of world sport from the IOC to the national sporting federation, and all the way to the athlete.

Transnational sport governing bodies, such as the IOC and FIFA, want their disputes handled in this single channel, because it renders them largely immune to oversight by the democratic instrumentalities of the world’s governments, especially the courts.  The transnationals have legitimate and less legitimate motivations.  They fairly worry about potential liability in multitudinous courts, each national judiciary applying its unique domestic law anchored in local priorities and prejudices.  Bypassing national legal systems, the transnationals can conserve resources for objectives in the public interest, such as sport for development and peace, and the promotion of human health and competitive achievement.  The logic supporting consolidation of international dispute resolution under one supra-national banner is the same by which the U.S. Constitution places interstate commercial disputes in U.S. federal courts, supervening the potential vagaries and favoritisms of the states.

But international arbitration has its dark side—in fact, nearly literally, as CAS operates in the opacity that typically surrounds arbitration.  Observers, including journalists and NGO watchdogs, grow frustrated and skeptical, as secrecy breeds unfairness and unaccountability.  This problem is the same that has generated angst within the United States over the “secret justice” system that has so thoroughly superseded the civil trial—see the excellent work of the Reporters Committee for Freedom of the Press in its Secret Justice series, linked from here. 

Further threatening the integrity of these proceedings, the contracts that bind parties to arbitration, and are then construed in arbitration, generally are adhesion contracts: drawn up by the transnationals themselves, weighted to their favor, and presented as fait accompli to young athletes with Olympic gold medals dancing in their dreams.  Barrister Andrew Smith, Matrix Chambers, conceded that these contracts are not meaningfully negotiated.  Their acceptance at the international level apparently marks the same phenomenon that has been documented with alarm, but as yet no serious reform, at the consumer level within the United States in works such as Nancy Kim’s Wrap Contracts and Margaret Jane Radin’s Boilerplate.

Upon my inquiry, Smith pointed out that for many reasons, athletes, given the choice, would themselves prefer arbitration to redress in the courts.  A plaintiff often desires secrecy as much as a defendant.  An expert arbiter might be more likely than a civil court to reach a conclusion that recognizes the nuances of divided merits, rather than erring in favor of dismissal as against the plaintiff’s burden of proof.  Though affordable representation for claimants has been a problem for the CAS system, organized arbitration systems still do a better job looking out for claimant’s access to representation than the usual civil court.  And most important to potential litigants are the time and costs of civil justice, often prohibitive deterrents that make faster and cheaper arbitration more appealing.

Nevertheless, panelists agreed that for the arbitration system to work fairness, stakeholders including athletes must take part in developing the process.  Conference organizer Tom Serby of Anglia Law School emphasized the need for democratization of sport governing bodies.  Smith said that organization of athletes into representative bodies is essential, noting with approval that “the United States is farther along with collective bargaining.”

With disparate levels of enthusiasm for the merits of judicial abstention, three speakers—Serby; Antoine Duval of the Asser Institute,Den Haag; and Simon Boyes of the Centre for Sports Law atNottingham Law School—all opined that national courts have been generously deferential to private dispute resolution in international jurisdiction.  Quotes from the iconic British jurist Lord Denning were offered both for and against the position.  Denning on the one hand bemoaned the courts’ relative lack of expertise in matters of private regulation, respecting the brightly formalist lines of conserved judicial power.  On the other hand, he declared, as quoted in Baker v. Jones, [1954] 1 W.L.R. 1005, “‘If parties should seek, by agreement, to take the law out of the hands of the courts and put it into the hands of a private tribunal, without any recourse at all to the courts in case of error of law, then the agreement is to that extent contrary to public policy and void.’”  Duval and Boyes mapped the ground between, where court intervention seems justified.  Boyes boiled down viable grounds to the protection of natural justice, human rights, and free competition and trade.

Incidentally the same autonomy question was taken up in similar dichotomy by Judge Richard Matsch and then the Tenth Circuit in Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352 (D. Colo. 1977), rev’d & remanded, 601 F.2d 516 (10th Cir. 1979).  Asked to intervene after an on-field altercation, Judge Matsch opined, on the “larger question” of “the business of professional football” and “the business of the courts,” that “the courts are not well suited” to allocate fault or probe causation.  For fear of excessive litigation and inconsistent rulings, any “government involvement” in the “self-regulated industry” of professional football was, in Matsch’s view, “best considered by the legislative branch”—Denning-like formalism.  Instead applying the law of recklessness to the dispute at hand, the Tenth Circuit disagreed.  Persuasive was the oft quoted reasoning of the Illinois Appellate Court in Nabozny v. Barnhill, 334 N.E.2d 258, 260—if a decision about teen athletes playing that other kind of football—that “some of the restraints of civilization must accompany every athlete onto the playing field.”

Well intentioned aspirations for meaningful athlete-as-stakeholder involvement and debate about the selective intervention of courts all gloss over the broader and more troubling trend of public, civil justice eclipsed by the private sphere.  I confess that what troubled me most about the sports lawyers’ commentaries on arbitration and autonomy was a problem beyond the scope of their charge: the disappearance of civil justice in our society at large.

Plenty has been written at the national level about vanishing civil justice and the rise of private dispute resolution.  But as the realities of globalization decree that every dispute becomes an international one—whether a youthful athlete against an international federation, or a homeowner against a floorboard maker—it it seems that public civil justice is dying.  Blind deference to adhesion contracts is hastening the trend, and the courts seem plenty eager to stand by and cede power.  They purport to further the laudable aims of deference to experts or freedom of contract.  But courts have always been in the business of second-guessing professed experts, and the contemporary commercial contract is hardly a product of free choices.

Dystopian science fiction in popular culture has in recent years flourished upon an obsession with burgeoning social angst over the corporatization of public life.  In 2013 and 2014, the Canadian TV series Continuum traced the personal struggle of an anti-terrorism agent who came to doubt the virtue of the corporate-dominated future she was sent back in time to protect.  Themes of abusive corporate supremacy and submissive, corrupted government dominate the visions of current hits, such as Killjoys and The Expanse, the latter based on the novels of James S.A. Corey.  The next year will see the premieres of Incorporated, a dark Matt Damon-Ben Affleck project, and the plainly titled Dystopia, which imagines 2037: “Governments are now powerless puppets for the biggest corporations.”

Western democracy has 900 years of experience developing a public system of civil justice to patrol the boundaries of right and wrong among us.  We ought not jettison that system so readily, nor so casually.  We ought not capitulate to the conveniences of globalization, nor certainly to the burdens of transaction costs.  Would that we spend more time and energy trying to fix the public system that we have rather than ushering it into the past and replacing it with the corporatized private justice of our nightmares.