Lauren Connell from The Volkov Law Group rejoins us with a posting on the recent New England Patriots scandal relating to deflated footballs.  Lauren can be reached at [email protected].

If only the New England Patriots had an Anti-Bribery and Anti-Corruption program, “Deflategate” might never have entered America’s vocabulary.  The long-running saga re-entered the media this past week with the release of the internal investigation results, undertaken by neutral and independent outside counsel.

Some were more surprised than others to learn that golden-boy, Tom Brady probably (as the report so diplomatically notes, it is “more likely than not that he … “) knew about footballs being purposefully deflated prior to the game in order to gain some advantage, whose actual effect is arguable.  Two other operational “employees” of the Patriots participated in the scheme.

In return for deflating game footballs, to a lower PSI as preferred by star quarterback Brady, Jim McNally received autographs and expensive sporting equipment such as jerseys and sneakers. McNally had no doubts about his role, referring to himself as “the deflator.”

This was a classic bribery scheme.  You’ve got “upper management” (Brady) seeking some modicum of advantage, using a mid-level go-between (John Jastremski, Patriots equipment assistant) to bribe a person with direct access (McNally).

The worst part about the whole scheme, is that it was “well known around the league” that the Patriots were doing this, as an opposing team’s Equipment Manager notified the NFL Operations Department about the scheme.  If “everyone” knew about it, even as a rumor, why didn’t the Patriots investigate the matter? What was missing in the Patriot’s culture and tone-at-the-top?

If the Patriots had had a strong “Culture of Compliance,” one with a “Speak-Up Culture” that encouraged internal reports of suspected or known misconduct, the Patriots might have had a chance to stop the scheme before it became a scandal.

But they did not.

This is a good reminder of how quickly corruption can develop in the most unlikely places.  It is tempting to break the rules, even when you are gaining such a small advantage that the value is negligible.  Was it worth it to Brady?  Most experts agree that it was not.  The Patriots would have won anyway and Brady would still have been MVP.  So why do it in the first place?  That question is one better answered by psychologists than lawyers.

The internal investigation report was thorough, well done, and appears to be unbiased.  The law firm did a good job leveraging scientific knowledge and sharp investigative skills to reach strongly supported conclusions.  Their inclusion of some of the more “colorful” language between the schemers will ensure that many read their report.

Brady, not surprisingly, refused to participate in the internal investigation.  He was not interviewed and did not turn over his phone records – a red flag for guilt.  In the end it didn’t matter, evidence from other sources was more than enough to piece together his role.  You can almost imagine him as a CEO screaming at his Country Manager, “get it done and I don’t care how,” before providing suitcases of petty cash to ensure that employee is able to “get it done.”

Would your organization’s culture have discovered, or, even better, prevented such a scheme from happening in the first place?  Do your employees know that no business advantage, no matter how small or large, is worth the risk of corruption?  If you don’t know the answers to these questions it might be time to find out.

If you do know the answers, you might consider applying for what will hopefully soon be a job opening: Chief Compliance Officer for the New England Patriots.