New England news is afire today over the civil lawsuit filed against NFL Patriots football acquisition Antonio Brown. It happens that many 1L law students are presently immersed in their first exposures to intentional torts and federal jurisdiction. So here from Mnwilla at Scribd is the complaint and some comments for thought.
1. The case is filed in federal court in Florida, but the claims are all in state tort law. What is the basis for federal jurisdiction? Why do you think the complaint was filed on Brown's first scheduled day of practice with the Patriots?
2. The fact statement is lengthy, paragraphs 14 to 74. But federal practice requires only "notice pleading." Plaintiff's counsel gives up a lot of information about the plaintiff's theory of the case by putting more content than necessary into pleadings. So why so much ink on factual allegations?
3. There are five straightforward counts, or causes: two in battery, one in false imprisonment, one in IIED, and one in invasion of privacy.
Notice how false imprisonment appears incidentally to other claims.
Unlike MBE hypotheticals, few cases in real life support false imprisonment by itself.
One of the battery counts is called "sexual battery (rape)." That's not really a distinct kind of battery in multistate common law, and it doesn't here appear to be covered by any specific statute, apart from common law. Nevertheless, a plaintiff may claim separate counts of tort upon discrete factual bases. What are the advantages of doing so?
What challenges does the plaintiff face in proving IIED? Do the factual allegations get her there? Is there vulnerability on this count or any other to a 12(b)(6) motion?
4. The plaintiff seeks punitive damages, and the bases for that claim are stated within the counts. Some jurisdictions require that sufficient allegations to support a claim for punitive damages be stated in a separate count, even though "punitive damages" is a damages claim, not a tort. Can you discern the rule for punitive damages in the state jurisdiction, based on the allegations?
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.
