On August 2, the National Football League announced findings and discipline against the Miami Dolphins at the conclusion of an independent investigation led by former U.S. Attorney and SEC Chair Mary Jo White. The NFL conclusively found that the Dolphins organization violated the league’s anti-tampering policy on three separate occasions and instituted discipline in the form of: the Dolphins forfeiting their first-round selection in the 2023 NFL Draft and third-round selection in the 2024 NFL Draft; Dolphins majority owner Stephen Ross being suspended through October 17, 2022, and fined $1.5 million; and Dolphins’ Vice Chairman/Limited Partner Bruce Beal being prohibited from attending any NFL meeting for the remainder of the 2022 season as well as being fined $500,000.
The NFL said that the discipline was appropriate to deter future violations and to safeguard the integrity of the game. NFL Commissioner Roger Goodell stated that the tampering violations were of “unprecedented scope and severity” and that he knew of “no prior instance of a team violating the prohibition on tampering with both a head coach and star player, to the potential detriment of multiple other clubs, over a period of several years” as well as no other instance where ownership was so directly involved in the violations.
The investigation found that the Dolphins had impermissible communications (involving Beal, with Ross’ knowledge) with quarterback Tom Brady in 2019-20, while he was under contract with the New England Patriots; had impermissible communications with Brady and his agent Don Yee (involving Beal and Ross) during and after the 2021 season, when he was under contract with the Tampa Bay Buccaneers; and had impermissible communications with Yee in January 2022 about Yee’s client, New Orleans Saints head coach Sean Payton, serving as Miami’s head coach, without consent from the Saints.
The NFL thanked the Dolphins for cooperating with the investigation, but that did not prevent the league from instituting the very harsh punishment identified above.
Realistically, violations of the NFL’s anti-tampering policy occur all the time but, as is true with all rules and laws, you need to be caught in order to be punished. Under the league’s rules, the result of the tampering violation is not a defense. A club cannot defend a tampering charge by asserting that the contact was not related in any way to the player’s subsequent contract problems or other disputes with the club, which is relevant for the two matters concerning Brady. The policy is very clear on this point. It says that a club “will not be able to defend a tampering charge by asserting that it did not obtain a competitive advantage as a result of its conduct.”
Much as is true for many other NFL policies, the burden of proof for the commissioner to institute punishment and the commissioner’s ability to decide what the consequences should be for a violator are very lenient. The standard of proof is a preponderance of the evidence — where the evidence, as a whole, shows that the fact sought to be proved is more probable than not. Furthermore, Goodell can point to the anti-tampering policy as the foundation for the very tough penalty that he imposed on the Dolphins and its ownership.
There is literally a section in the policy titled, “Enhanced Penalties,” which says that tampering “is a corrosive practice that undermines both the integrity of the game and relationships among clubs.” That “integrity of the game” language is used throughout league policies and even referenced at the end of the NFL’s public release announcing the punishment in this case. That section of the policy goes on to state that “more stringent discipline for documented cases of tampering is appropriate and necessary.” It also informs clubs that anyone found guilty of tampering should not expect the resulting discipline to necessarily be comparable to the discipline imposed in years past, opening the door to the commissioner’s discretion on these issues.
The NFL Anti-Tampering Policy also has a section on “Specific Penalties,” and notes that any violation will subject the club and/or person to “severe disciplinary action by the Commissioner,” which is a powerful phrase but also inherently vague so as to allow the commissioner quite a bit of leeway. This section clearly says that Goodell may deprive the offending club of NFL Draft picks and/or fine or suspend anyone without pay who was involved in the tampering. The commissioner may, but is not required to, consider whether the violating club did or did not secure the services of the player or coach. It does not appear that Goodell took that into consideration when imposing punishment on the Dolphins, Beal, and Ross.
Willful violations, where it is more likely than not, that a club deliberately set out to violate the NFL Anti-Tampering Policy or attempted to conceal evidence of the offense, whether before, during, or after its commission, will cause the parties to be subject to harsher discipline under such aggravating circumstances. The NFL’s release on this matter does not make it clear whether this played a role. While the NFL thanked the Dolphins for cooperating with the investigation, it was silent as to whether the Dolphins’ punishment was enhanced in any form for concealing evidence before or during the commission of the tampering.
The fact that the Dolphins did seem to fully support the investigation may be seen, but does not have to, as a mitigating factor to justify a less severe sanction. It does not seem that Goodell chose to consider that on this occasion, as is his right. It also does not appear that the Dolphins self-reported the violations, which would have potentially been viewed as a mitigating factor, as a club will not be credited with self-reporting if it is already confronted with independent evidence of the actual or suspected violation.
In sum, the Dolphins and a couple of its owners were hit with strong penalties for violating the NFL Anti-Tampering Policy because the NFL had set the stage to make a statement for any violators. The policy provides Goodell with broad discretion when the preponderance of the evidence standard is met, and the language in the policy makes it clear that the NFL has a priority to eradicate tampering, which it refers to as a “corrosive” practice, requiring “severe” disciplinary action by Goodell. If you accept a policy, you must be able to accept the consequences that it provides.
Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at email@example.com and follow him on Twitter at @DarrenHeitner.