The most important passage from the 457-page transcript of Tom Brady’s testimony of his June 22, 2015 appeal is merely two letters long. The National Football League Players’ Association made a transcript of Brady’s testimony, along with scores of other documents, public Tuesday afternoon. The NFLPA had previously agreed to an NFL request to keep certain materials, including Brady’s testimony, confidential. But earlier on Tuesday U.S. District Judge Richard Berman ruled that the confidentiality of the NFLPA-NFL litigation should be removed.
Brady’s “no” was in response to several questions posed by his attorney, Jeffrey Kessler, about whether Brady had any involvement in an alleged ball deflation scheme connected to the AFC Championship Game played by the New England Patriots and Indianapolis Colts on January 18, 2015. Brady also denied involvement in air pressure matters at other points in time, including when the Patriots played the New York Jets on October 16, 2014. Brady admitted to thinking about the inflation of his game footballs after the Jets game because he didn’t like the way the balls felt, calling them “grossly overinflated.” Obviously, Brady admitting to spending time on football air pressure is not an admission of wrongdoing. Brady also acknowledged that he let Patriots assistants know that he preferred the footballs be at 12.5 psi—the lowest permissible level under NFL rules. Brady stressed, however, that he wanted them within the permissible range of 12.5 and 13.5 psi and not overinflated as they were in the Jets game. Brady also told Goodell he received assurances from Patriots assistant John Jastremski that the team had done nothing wrong.
Doubters of Brady may place significance in four words related to Brady’s denials: “after you approved them.” Kessler posed questions that referenced whether Brady instructed others to deflate footballs “after” Brady had approved those footballs. Kessler’s questions, in other words, did not ask Brady if he had instructed others to alter the air pressure of footballs “before” approving those footballs. This could prove to be an immaterial point, since Brady and other quarterbacks might only give instructions about football preparation after approving them. Perhaps more telling, NFL attorneys did not seem to pick up on the “after you approved them” language or if they did, found it irrelevant. They declined to question Brady about it.
Why Brady’s denials matter in the broader context of Deflategate
Brady’s denials are important on multiple levels. First, if Brady is telling the truth, then he was not involved with the so-called “Deflategate” ball deflation scheme. This assumes, of course, that there was a scheme. Multiple reports by scientists express doubt that the Patriots engaged in any intentional acts of ball deflation, which raises a separate question of whether the NFL should revisit its punishment of the Patriots. Regardless, if Brady had no involvement with the underlying accusation, then his only possible wrongdoing would be related to his level of cooperativeness in an NFL investigation.
There is no rule in the collective bargaining agreement that required Brady to turn over his personal phone, texts and emails. Moreover, Brady, like any person, may have had privacy concerns about sharing electronic records. Still, the NFL appears to believe Brady was obliged to share records under general expectations of cooperativeness. Yet Ted Wells declined to endorse a punishment for Brady in regards to his cooperativeness. Although Wells sharply criticized Brady’s unwillingness to share electronic materials, calling it “one of the most ill-advised decisions I have ever seen,” Wells also testified, “I did not tell Mr. Brady at any time that he would be subject to punishment for not giving—not turning over the documents. I did not say anything like that.” If Brady is being honest, it is difficult to understand why the NFL would suspend him, let alone suspend him for four games. He categorically denied the allegations and the NFL lacks evidence that refutes Brady’s denial. The suspension would instead be based on Brady refusing to turn over electronic records, even though no collectively bargained rule required that he do so.
Second, do not overlook the significance of Brady’s testimony occurring under oath. By testifying under oath, Brady voluntarily assumed the risk that he could face criminal charges for perjury or "knowingly lying." The risk is minimal, as it is extremely unlikely that the NFL would refer Brady’s sworn statements to a prosecutor and equally unlikely that a prosecutor would find Brady’s testimony in an arbitration hearing to be worthy of substantial investigation. Still, there is some risk that Brady could face perjury charges if he knowingly lied. This voluntary acceptance of risk makes Brady’s statements seemingly more believable.
Release of Brady’s transcript reflects questionable NFL legal strategy
The release of documents didn’t have to happen, and its occurrence is likely of great aggravation to many NFL ownership groups. NFL owners are private people and like to keep their disputes in-house. Those owners were probably not thrilled by the Patriots release of emails last week between its team counsel Robyn Glaser and NFL attorney Jeffrey Pash, where Glaser inquires why the NFL had not tried to correct false reports about the Patriots attributed to “league sources.” Now the nitty-gritty details of Brady’s testimony and related topics are matters of public concern.
The dirty laundry of this notoriously private league is becoming more and more public each day.
Consider what Tuesday’s disclosures by the NFLPA contain. Fans can read how the special teams coordinator for the Ravens alerted a Colts official about his concerns over Patriots footballs. They can also learn how Colts general manager Ryan Grigson contacted NFL executive vice president Troy Vincent about the Patriots footballs, and how Vincent entrusted NFL vice president and former New York Jets executive Mike Kensil to investigate. Kensil, it should be noted, is alleged to have played a role in spreading a false story in the days following the AFC Championship Game that 11 of the Patriots 12 game balls during the AFC Championship Game were underinflated by two pounds of air. Fans can also read about how Wells’ “independent” investigation seemed anything but independent from the NFL, which according to the transcript paid Wells between $2.5 million and $3 million. In his testimony, Wells cited the attorney-client privilege between himself and the NFL in responding to questions posed by Kessler. He also admitted that NFL attorneys, including Lorin Reisner who cross-examined Brady in the appeal, assisted in the preparation of the report.
None of the disclosures had to happen for the NFL. Remember, before Brady and the NFLPA could challenge Goodell’s ruling in the U.S. District Court for Minnesota, the NFL hastily filed a complaint in the U.S. District Court for the Southern District of New York asking the court to confirm Goodell’s decision. The NFL presumably reasoned that the league would receive a more favorable forum in New York, especially given the possibility that U.S. District Judge David Doty—who is considered player-friendly—would be assigned the case in Minnesota. By filing first, the NFL made it much more likely that the case would be heard in New York and thus not by Judge Doty.
The NFL strategy proved procedurally correct, but substantively may have backfired. First, Judge Doty was not assigned Brady’s case in Minnesota. Instead, U.S. District Court Judge Richard Kyle was tasked to hear it. As the NFL predicted, Judge Kyle transferred Brady’s case to New York on grounds that the NFL filed first in New York. But Judge Kyle, who recused himself from the lockout lawsuit brought by NFL players in 2011 (Tom Brady et al. v. NFL), might have been a favorable judge for the NFL. We’ll never know.
Now the NFL must work with Judge Berman, who immediately made clear that he wants the parties to settle and to stop the escalating rhetoric. One way of encouraging parties to settle is to prevent them from being able to make their court filings confidential. Judge Berman seems to be admonishing both the NFL and NFLPA that if they want his assistance, they’ll need to accept that going to court is a public affair. If the NFL and NFLPA would rather handle their dispute in private, they should hire an arbitrator or mediator rather than rely on taxpayer-funded resources like the system of courts.
None of this is what NFL owners want to hear. They want Deflategate to end, but instead it is snowballing with no end in sight.
Impact on the case and next steps
Tuesday’s disclosures could advantage Brady. This seems particularly true in regards to the NFLPA’s contention that Goodell, as the hearing officer of Brady’s appeal, was partial. As the transcript shows, Goodell’s attorneys worked with Wells in editing drafts of his report. Wells' reference to the attorney-client privilege with the NFL in response to questions by Kessler likely also troubles Judge Berman in evaluating whether Goodell could have been fair. After all, Goodell would have essentially had to rule against multiple people who work for him to rule for Brady. Judge Berman may conclude that the deck was inescapably stacked against Brady from the start.
On August 12, the parties will meet with Judge Berman for a settlement conference. Judge Berman will attempt to ascertain if the parties can find a middle ground in their dispute. For instance, he will try to uncover whether Brady would be willing to accept a lesser punishment—perhaps a one-game suspension—even though his testimony exhibits a complete denial of any wrongdoing. Judge Berman will likely warn Brady and the NFLPA that if he issues a ruling on the merits, it will be based primarily on the lawfulness of the process used by the NFL to judge Brady. That analysis would be different from whether Brady actually partook in a ball deflation scheme. In other words, Judge Berman could have serious doubts that Brady “did it” and yet still rule for the NFL because he reasons that the NFL adequately applied Article 46 of the collective bargaining agreement. This may seem like a counterintuitive conclusion, but Judge Berman is not ruling on whether Brady is guilty of the underlying accusations but rather on how lawfully the NFL evaluated those accusations.
If the parties fail to reach a settlement on August 12, Judge Berman would likely schedule additional settlement talks for August 19. If the settlement talks fail, Judge Berman appears willing to issue a decision by September 4. Judge Berman’s decision would not be based on any new evidence or new testimony, but rather on the record used by Goodell in his appeal. This is the same record that was made public by the NFLPA on Tuesday. Judge Berman would either confirm Goodell’s decision to uphold Brady’s suspension or vacate it, which would lift Brady’s suspension. Brady would then be eligible to play in the Patriots’ season opener against the Pittsburgh Steelers on September 10. The “loser” of Judge Berman’s decision could appeal to the U.S. Court of Appeals for the Second Circuit but it could take months before the Second Circuit renders a decision.
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 and he will teach “Intellectual Property and Media in Sports Law” at the 2015 Oregon Law Sports Law Institute.