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Employee Rights: Tom Brady v. The Average Man04:32
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Tom Brady reacts during the Super Bowl. (Elsa/Getty Images)
Tom Brady reacts during the Super Bowl. (Elsa/Getty Images)
This article is more than 5 years old.

The air isn’t quite out of the Deflategate balloon. On Tuesday, the NFL upheld New England quarterback Tom Brady’s four-game suspension. That sets the stage for a legal battle in federal court.

Brady hasn’t set foot inside a courtroom, but some would say we already know about the situation in excruciating detail — right down to the NFL’s claim that Brady had an assistant destroy his cellphone that potentially contained evidence of wrongdoing.

Lewis Maltby, author of Can They Do That? Retaking Our Fundamental Rights in the Workplace and director of the National Workrights Institute, joined Doug Tribou to discuss how this would be playing out if Tom Brady wasn’t Tom Brady and the NFL wasn’t the N-F-L.


DT: Let’s imagine Tom Brady is an average guy – say he delivers pizzas. Brady’s bosses want pies delivered piping hot, he likes them a little cooler. They think there’s evidence on his cell phone. Can they demand that he hand it over?

LM: If Tom Brady was delivering pizzas, his boss would call him into his office and say, 'Brady you're fired. Clean out your office and leave.' And that would be the end of it.

DT: But he's great at it! I mean, what if they really wanted to retain his services?

LM: One of the few legal rights that Brady would have, if he delivered his pizzas, is a right to privacy. And some judges might say that making somebody give up their personal cell phone is a violation of the right to privacy, but not in this context. If you are suspected of workplace misconduct, and your boss said, 'Hand over the cellphone. We want to check this out,' you're toast. You'll get fired and you're not going to get a day in court. You're just going to be out.

"Your boss can fire you at any time for any reason under the sun -- or no reason at all -- and there’s nothing you can do about it."

Lewis Maltby

DT: What if fictional Brady replaces his cellphone and he claims — as the real Brady has — that he did it after thinking it was no longer needed. Could he still get in trouble?

LM: Doug, the problem here is that the rules for people like Brady and the rules for the rest of us are totally different. Brady's got a collective bargaining agreement. The rest of us don't have that kind of contract. Your boss can fire you at any time for any reason under the sun or no reason at all, and there's nothing you can do about it.

DT: Lewis, Tom Brady wrote on his Facebook page that he's disappointed with the NFL's decision to uphold the suspension, not surprisingly, and that commissioner Roger Goodell needs to respect his "rights as a private citizen." Is that a fair claim?

LM: No, it's not. The only texts that Goodell wanted to see were the texts Brady may have sent to the two people who actually deflated the balls. Goodell's got every right to see those texts.

DT: One thing I keep thinking about is how publicly this all plays out. And it's not leaks from the league, it's official statements and reports. And I just wonder if non-celebrities in less high profile jobs can expect more privacy in terms of what could actually be released if they get into a situation with their employer. 

DT: The players association has filed suit in federal court on behalf of Tom Brady. The NFL has filed its own suit asking for a certification of the suspension. Who do you think's going to come out on top in all this?

LM: It's not clear. What this court fight is about is very narrow. It's not about whether Brady is innocent or guilty or whether he should be punished or how much. It's about who's got jurisdiction over this? Did Goodell have the right to make this decision himself or did he have to have the case go to arbitration under the union contact?

DT: As you look at the Tom Brady case is there anything that a regular employee who's not in the headlines could take away from this — a learning lesson?

LM: The only lesson I can think of is join a union. It's not really being famous that's giving him some protection. It's the fact that he's got a contract. The rest of us, we're just roadkill if the boss wants to get rid of us.

This segment aired on August 1, 2015.

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