There comes a point in any litigation when there is no turning back, when no settlement can be reached. It’s the moment when both sides are resigned to taking their chances with the judge or jury. Until then, they often wage all-out war. If Tom Brady and Roger Goodell fail to reach a settlement in their case, Friday will probably be remembered as the day when the point of no return was crossed and when the gloves truly came off.
In a seething memorandum filed to U.S. District Judge Richard Berman Friday night, attorneys for Brady ridiculed Goodell as incompetent and dishonest. They also expanded earlier arguments that the NFL’s procedure for reviewing Brady’s alleged involvement in a purported ball deflation scheme in the 2015 AFC Championship Game between the New England Patriots and the Indianapolis Colts violated federal law.
In a later filing Friday night, the NFL responded by asserting that questions about evidence concerning Brady’s alleged involvement are completely irrelevant under the law. The league also insists that Goodell enjoyed ample facts to conclude that Brady—whom Goodell only a week ago called “a great young man”—had “personal involvement in a tampering scheme.”
Here are my five legal takeaways from the clashing filings:
1. This was personal
While all of Brady’s legal filings to date have been critical of Goodell, the one filed on Friday appears uniquely aimed at Goodell. Its tone is especially harsh and its rhetoric is most unforgiving.
Among the many accusations leveled at Goodell in its filing, Brady’s legal team mocks Goodell’s July 28, 2015 memorandum upholding Brady’s four-game suspension as “a propaganda piece written for public consumption, at a time when the NFL believed the transcript would be sealed from public view, to validate a multi-million-dollar ‘independent’ investigation.” This is extraordinary language for any legal filing, let alone one about the commissioner of the NFL.
To advance this dismissive characterization of Goodell, Brady (through NFLPA attorneys) takes direct aim at Goodell’s assertion that Brady “destroyed” his phone. Brady highlights that Goodell “never acknowledged that Brady had turned over all of his emails and all of his phone bills.” Brady, in other words, hopes that Judge Berman—as well as Goodell’s bosses, the 32 NFL owners, and thousands of NFL players and millions of fans—view Goodell as simply not believable. If Judge Berman concludes that Goodell lied in his arbitration award (the memorandum upholding Brady’s suspension), the judge would be more likely to vacate it.
2. No matter what happens from here, Brady’s filing on Friday was damaging to Goodell
Even if Judge Berman ultimately sides with the NFL, the harm inflicted upon Goodell’s reputation from Deflategate has been severe and perhaps irreversible. Many have questioned Goodell’s judgment in going to court against one of the league’s most popular players, particularly in a case built on questionable evidence. With Friday’s filing, that same player appears determined to use the legal system to directly undermine Goodell’s credibility.
To be sure, Deflategate is unlikely to cost Goodell his job. The NFL is making more money than ever. But it would not be surprising if some owners openly wonder how the commissioner could have let this bizarre controversy get to where it is currently at: a disaster.
Worse yet for Goodell, if the parties do not settle and Judge Berman issues an order, the loser of it will likely appeal. This would set off an appellate process that could take months if not longer. If Goodell believes the Brady matter will go away by being firm against Brady, Goodell may be sorely disappointed.
3. Judge Berman’s unexpected interest in the facts is a focal point in both sides’ briefs
In the court hearing conducted this past Wednesday, Judge Berman surprised most observers by demonstrating significant curiosity in the underlying evidence relating to Brady and slightly under-inflated footballs. The main reason for this surprise is that Judge Berman’s role is to review an arbitration award, not to conduct a trial. In such a review, judges are expected to accord high deference to the arbitrator’s findings of facts. Moreover, should he issue an order vacating or upholding Brady’s suspension, Judge Berman would base his decision primarily on how the NFL applied Article 46 of the collective bargaining agreement—not on whether Brady “did it.” Judge Berman’s interest in the facts was also surprising given that the NFL and NFLPA agreed that no discovery (which would entail each side sharing new information with one another) would be part of the judge’s review.
In its filing Friday night, the NFL indirectly reminded Judge Berman that his interest in the facts could be misplaced. Most notably, the league asserted that Goodell’s factual conclusions about Brady “may not be disturbed” under federal law. The NFL stressed that an arbitrator’s factual findings are accorded “extreme deference” under the law, meaning that Judge Berman should only explore questions about evidence with the highest form of reverence for Goodell’s fact-finding. The league even went so far to cite the U.S. Supreme Court case MLBPA v. Steve Garvey to conclude that federal judges can’t vacate arbitration awards “despite allegations that the [award] rests on factual errors.” In other words, from the NFL’s perspective, whatever concerns Judge Berman may have about the lack of direct evidence linking Brady to a ball deflation scheme should not be grounds for the judge to overrule Goodell.
Brady’s legal team clearly anticipated the NFL raising the issue of deference for Goodell’s fact-finding. In Brady’s brief, his attorneys tell Judge Berman that, “the point here is not that the Court needs to decide any disputes issues of fact.” Instead, Brady’s team explains, Judge Berman should conclude that, “the Award itself [Goodell upholding Brady’s suspension] evidences a clearly biased agenda—not an effort at fairness and consistency.” Still, Brady’s team used its brief to remind the judge of negative facts for the NFL. This was especially evident when Brady’s side bolded a quote from Wells in which Wells admitted that analysis of halftime PSI measurements was based on “uncertain” information.
In some ways, the attorneys for both sides are intentionally talking past each other when it comes to the issue of “facts.” Brady’s team wants Judge Berman to view Goodell’s fact-finding not as a question of evidence but as a question of process. From Brady's perspective, the absence of direct evidence is in fact a question of process, since Goodell would have misapplied Article 46 by punishing him without regard for “fairness and consistency.” In contrast, from the NFL’s perspective, the absence of direct evidence is irrelevant since Goodell is to be accorded “extreme deference.” To further this point, the league cites various forms of circumstantial evidence purportedly implicating Brady. This includes the “sudden spike in communications between Jastremski and Brady following the AFC Championship Game” and the supposed “evidence of McNally’s demands for cash, clothing and autographed items from Brady, some of which Brady provided.”
How will Judge Berman view these competing arguments about the legal significance of evidence? We’ll find out on Wednesday, which is when the parties are next scheduled to meet in court.
4. Brady team hammers home argument that rationale for his punishment has changed
One of Brady’s core arguments centered on unlawful process is that the NFL’s rationale for punishing Brady has changed without notice or explanation.
Originally, the Wells Report cited a theory that it was “more probable than not” that Brady had “general awareness” in an alleged ball deflation supposedly carried out by Jastremski and McNally. Subsequent declarations by NFL executive vice president Troy Vincent and Goodell, however, expressed far more certainty in Brady’s wrongdoing—despite the uncertain source of that increased certainty. Now the NFL portrays Brady as involved in a conspiratorial scheme, implying that he played an active role in it. Separately, the NFL has not explained what portion of the four-game suspension is based on Brady’s alleged uncooperativeness in not turning over all electronic records when initially requested.
The NFL’s brief categorically rejects this argument, stressing that “in no sense did the Commissioner depart from the original basis” for Brady’s discipline. The NFL, moreover, emphasizes that Judge Berman is obligated to provide high deference to Goodell’s interpretation of Brady’s fault. Taking a shot at the NFLPA, the NFL also referenced how “much of [Goodell’s] evidence—including the forensic analysis that revealed that Brady had destroyed his phone—came from the Union itself ... the Union cannot seriously contend that the Commissioner exceeded his authority by considering the evidence it proffered.”
5. Will witnesses testify in court next Wednesday?
In yet another surprising twist, ESPN’s Sal Paolantonio reported on Friday that the NFL and NFLPA might call witnesses to testify before Judge Berman next Wednesday. If this proves true, it would constitute a highly irregular development in a federal court review of an arbitration award—particularly a review where the parties have agreed that the available evidence for Judge Berman would only include the record used by Goodell. It’s not clear who the witnesses would be, but two who do not meet the criteria agreed by both parties are Patriots assistants Jim McNally and John Jastremski. Neither testified in the Brady appeal. Also, neither Brady nor Goodell are expected to be in court next Wednesday, which signals that they are unlikely to testify.
Ted Wells would be one person who would meet the limited criteria to testify in court. He testified in Brady’s appeal and obviously has played a key role in the NFL’s review of Brady. Wells, however, could invoke the attorney-client privilege if called to testify before Judge Berman, just as he did during Brady’s hearing before Goodell on June 23, 2015. To be sure, Wells invoking the attorney-client privilege before Judge Berman would further undermine the NFL’s earlier characterization that Wells conducted an “independent” investigation. NFL attorneys, however, now insist that because Article 46 does not obligate the NFL to provide an accused player with an independent investigation, Wells’ independence is irrelevant under the law. As I explained last week, Judge Berman might reject such an argument under an estoppel rationale. Judge Berman could reason that the NFL should be prohibited from assuring Brady of Wells' independence and then, in a subsequent attempt to gain a legal advantage, insist that those assurances carry no legal consequence.
Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. In the fall 2015 semester, he will teach an undergraduate course at UNH titled “Deflategate.” McCann is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.