The Brady Appeal: What’s Next in Deflategate Drama

Thursday May 21st, 2015

The 2015 NFL offseason mini-series about Tom Brady’s deflated footballs continues. Simmering since January, the heat was raised again this month in five installments: 1) the Wells Report; 2) the NFL discipline to Brady and the Patriots; 3) the Wells Report Context (“the Rebuttal”); 4) the Patriots Surrender; and 5) the Brady Appeal. The mini-series really should be titled “Attack of the Lawyers.” 

 

Having already written about the Wells Report and the penalties, here are my thoughts on the latest episodes and what's still to come:

 

Rebuttal

 

This document, prepared for the Patriots by the law firm of Morgan Lewis, was surprising in that it largely attacked the process (the Wells Report) rather than shed light on any (credible) exculpatory information. While the scientific analysis from a Nobel Prize winner (reportedly working for a firm for which Robert Kraft has an ownership interest) was a legitimate response to the Wells Report’s analysis, the explanation of the alleged deflation scheme was, to be charitable, lacking.

 

The Rebuttal asserted that 1) John Jastremski and Jim McNally were simply goofballs joking around in texts (the Rebuttal suggested that we all send texts we really do not mean); 2) the “he” referred to by them when discussing preferred football pressure specifications was not Tom Brady; and 3) McNally’s moniker “the Deflator” was simply a reference to his desire for weight loss. These contentions strain credulity. Making the Rebuttal even less believable was the fact that the Patriots suspended Jastremski and McNally—whom the Rebuttal defended—the day the findings of the Wells Report came out. Although one report indicated the NFL “suggested” those suspensions, the league has denied that.

 

My question regarding the Rebuttal was whether Kraft was using it as his appeal to the court of public opinion in lieu of an appeal through the league’s arbitration system or court. I believed all along that Kraft would avoid further action to 1) avoid lengthy litigation; and 2) use this humiliation as potential political chip to gain a reciprocal advantage down the road. 

 

 

 

And that happened. My sense is that some voices important to Kraft saw the folly of the Rebuttal and influenced his decision to surrender. If the Rebuttal was going to be his basis for further action against the league, there were going to be some uphill climbs. 

 

 

Good Timing

 

In a bit of fortuitous timing, the league’s annual May meeting coincided with Kraft weighing his options. Although the meetings comprise formal sessions, the real “action” when owners meet is more in sidebar conversations where investments of political capital are made for future reciprocal return.

 

I believe Kraft and his son Jonathan took the temperature of the group Monday and decided to give up the fight. In Kraft’s statement Tuesday, he mentioned such notions as “all 32,” “good of the league,” and “collective good,” all watchwords of the NFL and its owners. Kraft was one of the owners approving penalties in the past for Jerry Jones and Dan Snyder (salary cap violations) and saw recent penalties for Arthur Blank (piped-in noise) and Jimmy Haslam (texting from owners’ box) accepted without further action. Kraft knows the value of politics and relationships, and he made a decision to listen to his fellow owners and stand down to win one down the road.

 

As for that win, there is the convenient theory involving a reduced suspension for Brady, although I truly think that is completely separate. Jeffrey Kessler and the NFLPA are ready for a showdown with Goodell and the NFL, discussed below. I also don’t think that Kraft necessarily wants his quid pro quo right away; he has a political chip to hold over the head of the commissioner and other owners for a while. He will need something down the road—a stadium benefit, a rule proposal approval, an ownership transaction issue—and look for a return of this favor at that time. Politics matter, and that is what Kraft is playing here.

 

Moving from the team to the players, we get set for another incarnation of Brady v. NFL, this one examining football pressure rather than football earnings. Hearing the case will be the punching bag for so many, Roger Goodell. Let’s review why he will sit in that chair.

 

‘Not Giving That Up’

 

Having covered the 2011 lockout negotiation issues between the NFL and NFLPA more than any (sane) person should, I remember a top union executive telling me Goodell had “jumped the shark” on player discipline and it was a union priority to curb Goodell's “judge, jury and executioner” powers. And I remember Goodell telling me that while willing to surrender his role as arbitrator of drug-testing appeals, “Conduct and integrity are commissioner areas—I’m not giving that up.” And in the horse-trading of the harried negotiation on the eve of training camp, the NFLPA moved to other priorities and Goodell’s disciplinary powers remain unchecked. 

 

Despite their loss on that front in the CBA, the union is emboldened by “wins” from: 1) the lifting of the 2012 bounty suspensions by former commissioner Paul Tagliabue after Goodell recused himself; and 2) the 2014 Ray Rice appeal in which Goodell, an obvious witness, allowed for an independent former judge to rule, and the decision went in favor of Rice. Despite these wins, nothing has changed systematically and, perhaps because of them, Goodell has named himself to hear the Brady appeal and will likely deny the union’s request for an independent arbitrator.

 

As to the NFLPA’s request that Goodell be a witness, I assume that will be denied as well. Knowing this, the NFLPA and its esteemed counsel Jeffrey Kessler are setting the table for a potential appeal, already having won in federal court in the Adrian Peterson case. However, the NFL has lawyers too—in case you haven’t heard—and they certainly know an appeal is likely if they don’t receive their desired result. Further, the Peterson result was due to arbitrator Harold Henderson not applying past precedent in domestic violence cases, the “law of the shop,” rather than him being partial (an important distinction).

 

The Appeal

 

As they did for the Rice and Peterson appeals, the NFLPA brought prominent labor attorney Jeffrey Kessler on to the case, and there is no one else Brady should want on his side. Interestingly, Kessler was the lead attorney on the first Brady v. NFL, a strong antitrust case if the players were willing to wait out a lengthy litigation (which they weren’t).

 

 

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Kessler and the NFLPA will put the person levying the discipline and the addressee on the notice, Troy Vincent, in the spotlight regarding player discipline as they did in the Adrian Peterson appeal. Indeed, the notice chastises Vincent in a footnote reading, “We also note that one arbitrator has previously found that you, in particular, are unfamiliar with proper NFL discipline procedures and have no role in imposing discipline.” Ouch. As with Peterson, the NFLPA will question Vincent’s role in disciplining Brady as that is the role of commissioner—and only the commissioner—per Article 46 of the CBA.

 

 

In response, the NFL likely will detail Vincent’s area of game-day operations, with Brady’s transgression being in that category as opposed to player conduct. NFL lawyers will point to last month’s discipline to officials of the Browns and Falcons for similar game-day operations violations, with discipline handed down by Vincent.

 

The NFLPA’s strongest argument, in my view, addresses past precedent and “similar alleged conduct” drawing little or no discipline. Kessler and the NFLPA will point to the Vikings-Panthers game with heated footballs—and no discipline—and news accounts of other quarterbacks who liked their footballs a certain way. They will invoke the phrase the “law of the shop”—requiring the application of precedent—and accuse the NFL of being arbitrary and capricious.

 

In responding to this argument, the NFL may discuss whether the Brady discipline is for one game (the Colts game) or for a “pattern of behavior,” something certainly a part of the Patriots discipline. The exact time scope of Brady’s alleged actions was unclear (at least to me) from the Wells Report and should come out in the NFL’s defense of its position.

 

Speaking of the Wells Report, the appeal will be a referendum on it. The NFLPA claims it is “wrought with unsupported speculation” and a “disregard of contrary evidence.” NFL lawyers will emphasize Wells' credentials, the thoroughness of the report (time and cost were not an issue) and Brady’s failure to turn over records of phone calls and text-message records despite assured safeguards and no demand for his phone. 

 

My sense is that with Goodell presiding, the best Brady can hope for is a one- to two-game reduction. The key to me is whether Kessler has exculpatory evidence allowing him to do more than attack the process (the Wells Report).

 

Brady v. NFL, the sequel, is set to begin in the NFL’s ever-running offseason theater. Get your popcorn ready.

 

 


 

 

 

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