Tom Brady and a cautionary tale for employers

The great quarterback’s fate with the Patriots offers lessons in avoiding age discrimination claims

Regardless of your hometown or team affiliation and your feelings about the New England Patriots, Tom Brady is arguably the best quarterback of all time. Many even refer to him as the GOAT — greatest of all time. But at age 42 — an age few quarterbacks have reached in their playing career — speculation has begun on whether this was Brady’s last season with the Patriots after such a long career of success. Meaning that it may be time to look for a younger replacement.

Every day, employers have similar discussions as they look at succession issues within their own organizations. In doing so, if handled improperly, an employer can get into trouble. Not unlike the Patriots, if they push Tom Terrific unceremoniously aside for a younger player and risk a disgruntled fan base and teammates, in addition to bad blood with their long-serving franchise QB employers risk age discrimination claims if they dismiss older workers for the wrong reasons.

Federal age discrimination law prohibits discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits and any other term or condition of employment. It is unlawful under the Age Discrimination and Employment Act to harass a person because of his or her age.

Harassment can include offensive or derogatory remarks about a person’s age. Although the law doesn’t prohibit simple teasing, offhand comments or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being passed over for promotion, demoted or fired).

The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker or someone who is not an employee of the employer, such as a client, customer or vendor. While a certain wide receiver on the Patriots has been known to scream at Brady, “You’re too old! You’re washed up!” he did so, reportedly, to echo comments from TV and radio personalities, in an effort to motive Brady to prove them wrong.

 

In addition to disparaging comments and actions related to age employment policies or practices that apply to all applicants and employees, regardless of age, can still be illegal if those policies or practices have a negative impact on applicants or employees age 40 or older. That is, unless the policy is based on a reasonable factor other than age. Likewise, a claim for age discrimination can be successful if the employee’s age is the reason for the employer’s decision not to hire, advance, compensate or to terminate the employee’s employment.

So how does Tom Brady’s current situation offer a cautionary tale for employers who are considering replacing older workers — perhaps because of their age, or because of their high rate of pay, or because of a perception that their skills are diminished or they can’t keep up with younger workers?

Simple: Critics are quick to point out things like Brady not being as mobile or run as fast as other quarterbacks in the league or his throws don’t have the same accuracy, velocity or range they once had, and he isn’t worth spending tens of millions of dollars toward the team salary cap when he his diminished skills and the money could be spent on several younger players who might contribute more to the organization over the next few years.

But what’s the caution? That too is simple: Brady is still highly skilled in his position. He isn’t easily replaced. Without him, the team, regardless of the coaching staff or other key players, will likely take a significant step backward. In addition, he has been the face of a franchise with an unprecedented dynasty lasting nearly 20 years. That has value in season ticket sales and merchandising. The Patriots before Brady had been largely unsuccessful since the team’s inception in 1960.

 

Casting Brady aside or letting him leave for another team because ownership or the head coach doesn’t want to pay him at his age wouldn’t be the basis for an age discrimination lawsuit (while Brady is over the 40-year-old threshold and therefore considered an older worker under federal age law, players in
the NFL aren’t covered by federal age discrimination laws), but it could still have a devastating impact on the
team’s standing in the league, the loyal fan base and the financial success of the franchise.

Likewise, casting aside older, skilled workers because of their age, their salary or based on a perception they can’t keep up with technology, trends or younger workers could result in a damaging age discrimination claim for that organization.

In addition to potential damages for lost wages and benefits, a successful age discrimination claim could require an employer to pay for compensatory (mental suffering) damages and attorney’s fees. Finally, claims like that could have a chilling effect on the morale of existing employees young and old (like teammates), it could hurt recruitment efforts and lateral hiring (like draft picks or free agent signings) and leave a negative impression with customers, clients and donors (like loyal fans).

 

There will be a time for Tom Brady to hang up his cleats and focus his attention on his other business interests, his family and getting fitted for his Hall of Fame gold jacket. That may come because his skills have truly diminished to the point where he can no longer be a useful contributor to the team. (I’m still hoping for another year or two for him in a Patriots uniform). Likewise, there are good, reasonable and legitimate reasons for replacing workers of any age in every organization, age just can’t be the motivation factor.

Next spring, Tom Brady will be 43 years old. By just about any measure, that isn’t old. While that may seem old for professional sports, he wouldn’t the oldest player to ever play professional football. But it is truly remarkable that he has played at the highest level for so long. That has real value. In the same way, an employee’s longevity, skills, knowledge and contributions to an organization should always be considered over his or her chronological age.

In an era when players jump from team to team through free agency and employees are more nomadic than ever before, investing in players and employees, focusing on culture and loyalty as a two-way street and valuing commitment could be the keys to a firm foundation in any organization, perhaps leading to the next dynasty.

Attorney Jim Reidy is a partner in the firm of Sheehan Phinney and chair of its Labor and Employment Practice Group.

Categories: Legal

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