It will be many weeks before a three-judge panel on the U.S. Court of Appeals for the Second Circuit rules on whether to affirm or reverse U.S. District Judge Richard Berman’s Sept. 3, 2015 order to vacate Tom Brady’s four-game suspension. In the meantime, both the NFL and NFLPA will continue to develop legal strategies for a case that might last into 2017 or even 2018. Those strategies are influenced by last Thursday’s oral arguments before Judges Robert Katzmann, Barrington Parker, Jr. and Denny Chin, a trio that expressed skepticism towards the legal reasoning of both parties but especially towards that of the NFLPA. I attended last Thursday’s hearing, which I detailed on SI.com. Now, almost a week later, I consider several of the more controversial parts of the litigation and how they might influence the legal process going forward.
Why was Judge Chin so certain of football tampering?
Several of the factual characterizations made by the judges during last Thursday’s hearing seemed to catch NFLPA attorney Jeffrey Kessler and much of the audience by surprise. This was especially true when Judge Chin opined that, “the evidence of the ball tampering is compelling, if not overwhelming.” This statement expressed a level of certainty in the Patriots’ and Brady’s alleged misconduct far greater than that adopted by Judge Berman. In his 40-page order, Judge Berman highlighted how the Wells Report was dependent on assumptions and speculation. Moreover, during a hearing last August, Judge Berman led NFL attorney Daniel Nash to admit that there was no direct evidence of ball deflation conspiracy. Yet Judge Chin now finds this same evidence “overwhelming.”
Judge Chin even seems more certain of ball tampering than the view espoused in the Wells Report, which only found such allegations to be “more probable than not.” Granted, the NFL only asked Ted Wells to apply the “more probable than not standard,” meaning it is possible that Wells was more certain than he expressed in the report. Still, the tenor of the accusations in the Wells Report was couched with relative caution. This was particularly apparent in the Wells Report’s view of Brady, whose alleged role in Deflategate was based on supposed knowledge of others’ misconduct rather than on active planning or plotting.
Judge Chin’s certainty in a ball deflation plot largely resembles the view contained in Goodell’s 20-page “final decision”—an arbitration award—on July 28, 2015. Goodell’s decision was based on the Wells Report and on his impressions from serving as the presiding officer at Brady’s appeal on June 23, 2015. In the decision, Goodell presented as factual statements that “Mr. Brady knew about, approved of, consented to, and provided inducements and rewards in support of a [ball deflation] scheme….” Goodell also concluded that “with respect to the game balls,” Brady engaged in “conduct detrimental” to the league. Unlike Wells, Goodell portrayed Brady as willing participant in, and key facilitator of, a ball deflation plot rather than a mere witness to it.
It is within Judge Chin’s power as an appellate judge to reach conclusions from the record that are different from those adopted by Judge Berman. The standard of review for the NFL’s appeal is “de novo” which means the three appellate judges can look at the same record as Judge Berman and completely disagree with him. The record in the Brady v. NFL case is also very limited. It is not inclusive of most commentaries about Deflategate. The record only contains materials that Goodell considered, transcripts of oral arguments before the judges and legal briefs filed by the parties. Critical scientific commentaries on Deflategate, such as the influential work of Massachusetts Institute of Technology professor John Leonard, are not part of the record the judges must consider. Some of those commentaries are referenced in an amicus brief filed by New York Law School Professor Robert Blecker, who is not a party to the case but has a strong interest in the appeal. The judges, however, are not obligated to consider materials submitted by nonparties. Consequently, the best evidence for Brady—evidence showing that the entire Deflategate saga is a function of Ideal Gas Law in action rather than a nefarious plot—is outside the record the judges must weigh. The reason for such a narrow record is that federal courts are obligated to defer to the arbitrator’s fact-finding. Goodell, as the arbitrator, drew conclusions about facts from the Wells Report, Brady’s appeal and related materials.
While Judge Chin’s apparent adoption of Goodell’s view is permissible, it is nonetheless surprising given what we know about the science of Deflategate. It is even more surprising given that Judge Berman seemed to doubt the NFL’s reasoning.
Did Paul Clement misrepresent Brady’s statements and would it matter?
During the oral argument, NFL attorney Paul Clement depicted Brady’s behavior following the 2015 AFC Championship Game in a deeply suspicious light. Clement highlighted, among other things, that Brady was “in near constant communication with [John] Jastremski,” the Pats employee whose text messages to Brady were shown in the Wells Report. Clement raised this point to suggest that Brady, Jastremski and fellow Pats employee Jim McNally were conspiring to cover their tracks, a view in line with Goodell’s rendition of Brady as something of a ringleader. Clement also told the three judges that Brady misled NFL investigators as to the purpose behind his meetings with Jastremski. According to Clement, Brady informed the investigators that he had met with them to “talk about Super Bowl ball preparation” and not to talk about Deflategate allegations. Clement’s portrayal was consistent with the one found in Goodell’s July 25, 2015 final decision, which similarly characterized Brady as telling the league that he had conducted meetings only to talk about football preparation.
As noted first by Michael Hurley of CBS Boston, Clement’s recounting of Brady’s explanation is at odds with Brady’s sworn testimony. During Brady’s appeal hearing, he testified that he met with Jastremski for two reasons, not one: to discuss the Deflategate allegations and to discuss Super Bowl football preparation. We know Brady gave this testimony because Judge Berman ordered the testimony’s transcript be released. The transcript showed that Goodell inaccurately portrayed Brady’s sworn testimony in his final decision.
Brady’s sworn testimony is also arguably consistent with the Wells Report, which details statements attributed to Brady where he indicates that he may have discussed the Deflategate allegations with Jastremski following the AFC Championship game. McNally also told Wells investigators that he might have discussed the Deflategate allegations with Jastremski.
During Thursday’s oral arguments, none of the three judges voiced any concerns about the sizable inconsistencies between how Clement and Goodell characterized Brady’s words and the actual words spoken by Brady. If the judges recognized it, their facial expressions didn’t show it. Keep in mind, whether Brady lied to NFL investigators is an important point. If Brady knowingly lied, Goodell’s justification for suspending him would be strengthened. If he didn’t, the opposite would be true.
So, then, did Clement “lie” to Judges Katzmann, Parker and Chin about Brady’s explanation for holding meetings with Jastremski?
In one sense Clement “lied” since Brady, as mentioned above, clearly testified that he met with Jastremski for two reasons, one of which—contrary to Clement’s account—was to discuss the Deflategate allegations. The Wells Report also indicates that Brady suggested to Wells investigators that the Deflategate allegations may have come up during the meetings with Jastremski. This further suggests that Clement’s choice of words was deceptive at best.
On the other hand, Clement could assert that the Wells Report portrays Brady as at least somewhat uncertain about whether his discussions with Jastremski touched on the allegations. Further, Clement could insist that he was merely conveying the view of his client, Goodell, who clearly did not believe Brady’s testimony. Along those lines, while American Bar Association Rule 4.1 prohibits attorneys from knowingly making a false statement of material fact, Clement could highlight that the basis of his knowledge is derived from his client. Further, Clement could emphasize that he neither has a duty to corroborate his client’s account nor an obligation to harmonize it with the account of the opposing party. Clement could also stress that the same set of American Bar Association Rules of Professional Conduct expect an attorney will “zealously assert” his or her client’s position. While zealous advocacy does not permit outright lying, it does tolerate an attorney spinning his or her argument. Lastly, Clement could reason that since the three judges and their law clerks are expected to review the entire record, it is incumbent on them to identify and assess any inconsistencies.
Even if the NFLPA could show that Clement was knowingly dishonest, any consequence would likely be borne by only Clement. If it was convinced to do so, the Second Circuit could sanction Clement for knowingly misrepresenting the record. Such a sanction, however, would not extend to the NFL. Moreover, Clement is arguably the most prominent appellate attorney in the country and is highly respected by federal judges. No court would consider sanctioning him unless the evidence was overwhelming and unambiguous.
Did the NFL misrepresent “facts” in its written briefs and would it matter?
As referenced above, attorneys are expected to zealously advocate on behalf of their clients. This expectation has been interpreted to mean that attorneys can, to some degree, shape or bend facts to fit their arguments. Outright lying and wholesale distortion of facts, on the other hand, is not allowed. Indeed, courts are often able to financially sanction both parties and their attorneys for filing legal briefs that are intentionally based on false information.
With that in mind, it is worth considering several “facts” as represented by the NFL in its appellate briefs. First, the NFL’s brief on Oct. 26, 2015 references “messages dating back to May 2014 and continuing during the 2014–2015 season [in which] McNally referred to himself as “the deflator” and [McNally and Jastremski] discussed deflation using ‘needles.’” This statement could be read as misleading, if not worse. Keep in mind, there was only one text message in which McNally refers to himself as “the deflator.” The message was sent in May 2014, eight months before the AFC Championshp Game and four months before the season even started. Contrary to the brief’s insinuation, no additional “deflator” messages “continued” during the following season. As to the brief’s reference of a discussion about needles, while such texts existed, none referenced a plot to deflate footballs after inspection by the referees. In fact, a plain reading of the texts appears to indicate they concern ordinary ball preparation by locker room assistants.
The NFL’s discussion of Brady giving gifts to Jastremski and McNally is also problematic. Although the Oct. 26 brief does not use the word “bribe” it is clearly implied. For instance, according to the NFL, Jastremski and McNally “were handsomely rewarded” by Brady with cash and autographed jerseys and footballs. The brief also says that McNally would “often” ask Jastremski to let Brady know of his “demands for items of value.” To be sure, gift-giving sounds a little suspicious—until you consider that Brady has given gifts to locker room staff throughout his 16-year career and that it is a common practice by NFL quarterbacks. Judge Katzmann seemed aware of this alternative reason when he asked Clement if the NFL had considered that such gifts might “simply” have been “a matter of course of relationships between players and those who work in the locker room.”
The NFL’s insistence that Brady’s counsel was present at meetings between Brady and Wells investigators also seems inconsistent with the record. At the time, Brady’s agents, Donald Yee and Stephen Dubin, were acting as his attorneys. As a member of the NFLPA, Brady’s “counsel” could not have been an attorney who works for the Patriots, a franchise member of the league investigating Brady, or an attorney who works for Patriots owner Robert Kraft, a member of the NFL’s management council. The NFL seemed to recognize Brady’s attorneys were Yee and Dubin, given that Wells had been in touch with the two of them before and during Brady’s interviews. Yet in its Oct. 26, 2015 brief, the NFL claims that, “Brady’s counsel was present for many of the interviews at which the notes were prepared.” This factual assertion is flat out wrong, according to the NFLPA. In a footnote 11 of its Dec. 7, 2015 brief, the NFLPA stresses: “The NFL falsely states that ‘Brady’s counsel was present for many of the interviews.’ Of the more than 66 Paul Weiss interviews, Brady’s counsel (his agents) were present for one—Brady’s—and the NFLPA was present for another (Patriots kicker Stephen Gostkowski’s).”
At first glance, whether Brady’s attorneys were present for his meetings with investigators might not seem very important. After all, you might conclude that if Brady had nothing to hide, it is irrelevant whether his attorneys were with him. I disagree. An attorney present for an interview between two potentially opposing parties is crucial to guaranteeing fairness. Among other things, an attorney’s presence reduces the chance that a witness can be tripped into making an admission for something he or she did not do. Similarly, an attorney’s presence levels the playing field for a witness who has not been trained—as attorneys are—in how to question others and in how to answer legal questions. Brady meeting with attorneys who work with Wells is a scenario where Brady should have had his own counsel present. This seems particularly true when the league that hired those same attorneys had allegedly leaked false and damaging information about Brady to prominent members of the media (for example, “11 of the 12 Patriots footballs were under-inflated by two PSI”).
Lastly, the NFL offers a controversial depiction of the investigative notes Goodell would not share with Brady. Attorneys from Wells’s law firm, Paul, Weiss, Rifkind, Wharton & Garrison, prepared these notes during their investigation. In their Oct. 26 brief, the league describes the notes as “internal attorney work product.” This moniker is appropriate for documents that become confidential because they are prepared in anticipation of litigation. The problem with such a moniker in this instance is that it suggests the league was already preparing for litigation against Brady in the days and weeks following the AFC Championship Game. If so, it is worth questioning whether investigators and Goodell ever gave Brady a fair shot.
The investigative notes were also substantively important for Brady and the NFLPA in waging an effective defense. The notes contained information about key assumptions made by Exponent—assumptions that were not revealed in the Wells Report. For instance, Brady, the NFLPA and the Patriots were not fully informed about Exponent’s assumptions about how much time elapsed when measuring air pressure.
Legal strategies for NFLPA if the Second Circuit rules for NFL
Assuming, for the sake of argument, that the NFL wins the appeal and Judge Berman’s order is reversed, the NFLPA could attempt to unwind that victory. The NFLPA would have 14 days to petition the three-judge panel for a rehearing. Among other grounds for a rehearing, the NFLPA could stress that inconsistencies between Clement’s oral argument and the record misled the judges into misunderstanding the case. Kessler may have planted the seed for such an argument during the Mar. 3 hearing by repeatedly claiming that Clement had engaged in purposeful “misdirection.” If the three-judge panel agrees to reconsider the appeal, it could elect to substantively amend the decision.
Simultaneously, the NFLPA could petition for a rehearing en banc. As I explained in a previous SI.com article, an en banc hearing would involve the entire Second Circuit court of appeals hearing the appeal.
Unfortunately for the NFLPA, neither a petition for a rehearing or a petition for a rehearing en banc would likely be granted. Available data suggests that both a rehearing and a rehearing en banc are extremely rare. If the three judges split 2–1, the odds would be slightly higher given the presence of a dissenting opinion, but still low.
Assuming Brady is unable to secure a rehearing or a rehearing en banc, he would then seek a “stay” of his suspension while he appeals to the U.S. Supreme Court. A stay would be a court order preventing the NFL from carrying out its punishment—a four-game suspension of Brady—until the appeals process is complete. Brady would argue that he would suffer irreparable harm in the absence of a stay. He would insist that once he serves a four-game suspension, he could never play those games again. For all practical purposes, Brady’s case would become moot once he serves the suspension.
Brady’s chances for an ultimate victory would be much higher if the three-judge panel remands a reversal back to Judge Berman. In a remand, the three-judge panel would rule against Judge Berman, but at the same time, the panel would allow the judge an opportunity to reconsider the case albeit with new instructions. Clement and Kessler disagreed about whether the panel should remand the case. Clement argued that a remand is not warranted and that Brady should serve his suspension, whereas Kessler argued the opposite. One argument in favor of remand is that Judge Berman declined to consider three arguments raised by Brady. I noted them in an earlier piece: (1) whether Goodell acted in an “evidently partial” manner by delegating his authority to NFL executive vice president Troy Vincent; (2) whether Goodell wrongfully made factual conclusions from materials other than the Wells Report and Brady’s appeal; and (3) whether Goodell praising the Wells Report made it impossible for Brady to obtain a fair appeal. On remand, Judge Berman could again rule for Brady, with the NFL then appealing again. Such maneuvers would bring the case into 2017 if not beyond.
Views from other attorneys
I have spoken with many sports and labor attorneys about this litigation. Here is a sampling of thoughts, which lend some optimism for Brady and the NFLPA:
Robert Blecker, author of an amicus brief in this litigation and an attendee at the Mar. 3 hearing: “Clement stated that both sides had ‘equal access’ to the material on which the Wells Report was based. This is blatantly false as the Wells Report does not give any basis for Exponent’s conclusion as to the half-time sequence etc. . . . The facts have played too small a role and NFL counsel misstated them in key spots in the brief and the oral argument. And as has been his pattern, NFLPA counsel allowed those misstatements largely to pass uncorrected . . .[The NFL’s] fact finding has been infected with evident partiality, bias and fraud.”
Alan Milstein, an attendee at the Mar. 3 hearing: “The judges at oral argument seemed obsessed with Brady's destruction of his phone, a dumb but irrelevant act. Perhaps when they sit down to analyze whether Judge Berman should be reversed as a matter of law, they will find there is no such basis. In any event, they should at least remand for Judge Berman to determine the issue of evident impartiality, which was always the best and easiest issue to justify refusing to certify the arbitration award.”
Daniel Wallach, an attendee at the Mar. 3 hearing: “There were many positives for Brady in the oral argument. Right out of the gate, Judge Katzmann asked whether Brady’s right to a fair hearing was compromised by the new factual findings made by Goodell. Both Katzmann and Judge Chin appeared troubled by Goodell’s escalation from a finding of ‘general awareness’ to ‘direct participation in a scheme to deflate footballs’ and also from the leap of ‘'noncooperation’ to ‘obstruction’ (viz-a-viz, the destruction of the cell phone), noting that while Brady could appeal the former (to Goodell), he was precluded from appealing the newer findings. This raises issues of both ‘notice’ and ‘fundamental fairness,’ which could tip the balance in Brady’s favor. Judge Katzmann even questioned whether you could uphold the discipline on the basis of the new factual findings. This could be a winner for Brady.”
Richard Zaiger, former regional director of the Federal Labor Relations Authority: “How would Judge Chin be able to make the comment he did about the ‘overwhelming’ evidence against Brady? If I had to guess, I'd speculate that the judges at most read the briefs and Goodell's decision on appeal and nothing else. If I had to guess, at this point I'd say Berman's decision on ‘notice’ will not be accepted. The process questions regarding Pash and the documents, however, remain. If those rulings stand then the case could get bucked back to Berman to address the issues Berman did not address and to reevaluate the remedy.”
Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He also created and teaches the Deflategate undergraduate course at UNH, serves as the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and is on the faculty of the Oregon Law Summer Sports Institute.