Brady 4 game suspension upheld; Will go to court

[NoSaint]

 

I'm not trying to stamp any conversation out; I apologize for coming on strong.

 

But your analogy doesn't hold. It isn't that there is a fine specified and he got jail time. There is no precedent available to make that kind of judgment, because no one has ever been involved in or knew about someone stealing gameballs before.

 

kj

Unless you take credible arguments that no ones been suspended for equipment tampering (a fine), being generally aware of equipment tampering (seems like a lesser offense) or non cooperation. If this falls outside of all that and is, as the nfl asserts, akin to PED use (and not in theory of "oh yea those are both getting an edge" but in legal interpretation of the cba) then the nfl has a stronger case... But it could be a stretch.

 

As I've been saying from the get-go, it'll be an interesting spot. I don't think there's any way for you to argue it's a slam dunk that the nfls explanation is accepted

[Wayne Cubed]

See this is where Florio studying law is nice:

 

@ProFootballTalk: In appeal transcript, Tom Brady comes off as evasive on the reason for his preference of 12.5 PSI http://t.co/Vd9D12RXoP

 

He makes a lot of good points and by not conceding that he prefers balls at the lowest possible pressure, he comes off as evasive. "We just randomly picked that number". Uh huh, sure you did.

[NoSaint]

See this is where Florio studying law is nice:

 

@ProFootballTalk: In appeal transcript, Tom Brady comes off as evasive on the reason for his preference of 12.5 PSI http://t.co/Vd9D12RXoP

 

He makes a lot of good points and by not conceding that he prefers balls at the lowest possible pressure, he comes off as evasive. "We just randomly picked that number". Uh huh, sure you did.

Definitely reads ridiculous. He's clearly trying to avoid answering a leading question with the obvious answer that sets up a follow up that could be unfair or create a memorable sound bite.

 

I get why he's doing it, but it sounds absurd. Just own "I prefer the balls on the soft end of the spectrum, so we picked the low number to be safe, even if a little over filled"

[LeGOATski]

See this is where Florio studying law is nice:

 

@ProFootballTalk: In appeal transcript, Tom Brady comes off as evasive on the reason for his preference of 12.5 PSI http://t.co/Vd9D12RXoP

 

He makes a lot of good points and by not conceding that he prefers balls at the lowest possible pressure, he comes off as evasive. "We just randomly picked that number". Uh huh, sure you did.

This just in: Brady handles balls gently. Same as the shafts of a golf club.

[Wayne Cubed]

Definitely reads ridiculous. He's clearly trying to avoid answering a leading question with the obvious answer that sets up a follow up that could be unfair or create a memorable sound bite.

 

I get why he's doing it, but it sounds absurd. Just own "I prefer the balls on the soft end of the spectrum, so we picked the low number to be safe, even if a little over filled"

Yea. His responses become increasingly more ridiculous.

[Kelly the Dog]

“You can’t do anything with the footballs in terms of any artificial, whether you’re heating them up, whether it’s a regular game ball or kicking ball, you can’t do anything to the football,” NFL V.P. of officiating Dean Blandino said at the time. “So that was noticed during the game, both teams were made aware of it during the game and we will certainly remind the clubs as we get into more cold weather games that you can’t do anything with the football in terms of heating them up with those sideline heaters.”

Which is the rule and they reminded them and fined them. But they still were trying to keep them from freezing. To keep them normal. The Pats stole all the balls from the officials grasp and then altered them all to make them illegal. It's simply not the same.

You can, he didn't say, warm them up with the hand warmers. Just not the big sideline heaters.

Definitely reads ridiculous. He's clearly trying to avoid answering a leading question with the obvious answer that sets up a follow up that could be unfair or create a memorable sound bite.

I get why he's doing it, but it sounds absurd. Just own "I prefer the balls on the soft end of the spectrum, so we picked the low number to be safe, even if a little over filled"

That is DIRECTLY opposite of McNallys testimony where he said Tom specifically likes them at the lowest point. At 12.5.

 

He sounds, well, like a guilty person.

[The Wiz]

This is becoming embarrassing.

 

He must be lying so much that he is actually starting to believe the lie.

Edited August 4, 2015 by The Wiz

[NoSaint]

 

That is DIRECTLY opposite of McNallys testimony where he said Tom specifically likes them at the lowest point. At 12.5.

 

He sounds, well, like a guilty person.

He's also saying 12.5 is the number but avoiding the obvious "I like them as soft as possible" sound bite you would likewise kill him for. It's just basic jockeying for position there and the attorney bested him with it.

[YoloinOhio]

@AlbertBreer: The full Brady transcript is now up online here: http://t.co/Zk3SB2U5Tu

[YoloinOhio]

 

@ProFootballTalk: Ravens assistant alerted Colts to issue with footballs http://t.co/0Kq143wS7K

[Kelly the Dog]

He's also saying 12.5 is the number but avoiding the obvious "I like them as soft as possible" sound bite you would likewise kill him for. It's just basic jockeying for position there and the attorney bested him with it.

I'm reading the transcript now. Brady says he didn't even know McNally took the balls to the officials room. Even after they made it clear to him he recognized him ( in other words, it's not that he didn't know McNallys name, it's that he says he didn't know that guy had anything to do with the balls). No idea who brought them to the officials. But McNallys testimony is that Tom told me specifically this is what he wants. It's a direct lie.

 

Brady also says that in the text between Jastremski and McNally where Jastremski says to McNally "I brought you up last night" - meaning brought up McNally to Brady - Brady says that conversation never happened. They never talked about McNally or anyone having anything to do with the balls.

 

I guess Jastremski just made that up out of the blue.

Edited August 4, 2015 by Kelly the Dog

[LeGOATski]

I'm reading the transcript now. Brady says he didn't even know McNally took the balls to the officials room. Even after they made it clear to him he recognized him ( in other words, it's not that he didn't know McNallys name, it's that he says he didn't know that guy had anything to do with the balls). No idea who brought them to the officials. But McNallys testimony is that Tom told me specifically this is what he wants. It's a direct lie.

 

Brady also says that in the text between Jastremski and McNally where Jastremski says to McNally "I brought you up last night" - meaning brought up McNally to Brady - Brady says that conversation never happened. They never talked about McNally or anyone having anything to do with the balls.

 

I guess Jastremski just made that up out of the blue.

Maybe he used a nickname for McNally, like "Assistant Deflator" and Brady had no idea...

[Kelly the Dog]

When asked if Brady knew that the NFL was going to ask to see his text messages during his appeal that had anything to do with inflation Brady says he doesn't remember. LOL.

Maybe he used a nickname for McNally, like "Assistant Deflator" and Brady had no idea...

It's incredible. He admits knowing who McNally is by face, like when they showed him a picture. But says he has no contact with him whatsoever. But McNally said "Tom told me this..."

[NoSaint]

I'm reading the transcript now. Brady says he didn't even know McNally took the balls to the officials room. Even after they made it clear to him he recognized him ( in other words, it's not that he didn't know McNallys name, it's that he says he didn't know that guy had anything to do with the balls). No idea who brought them to the officials. But McNallys testimony is that Tom told me specifically this is what he wants. It's a direct lie.

 

Brady also says that in the text between Jastremski and McNally where Jastremski says to McNally "I brought you up last night" - meaning brought up McNally to Brady - Brady says that conversation never happened. They never talked about McNally or anyone having anything to do with the balls.

 

I guess Jastremski just made that up out of the blue.

Is it a lie? Probably. Is it possible that in his hundreds of daily texts plus calls, emails, interviews, etc... the interaction was more memorable for a ball boy than a star qb? Maybe. Are both sides likely to be bending the narrative? I think so, but I'm not sure you would agree that the nfl is also likely.

[Kelly the Dog]

Is it a lie? Probably. Is it possible that in his hundreds of daily texts plus calls, emails, interviews, etc... the interaction was more memorable for a ball boy than a star qb? Maybe. Are both sides likely to be bending the narrative? I think so, but I'm not sure you would agree that the nfl is also likely.

Brady says he has no idea who handles the balls with the refs. He says he has seen McNally but never talked to him. He says that in all the conversations he had with Jastremski AFTER the allegations, that Jastremski never mentioned McNally in their 10-15 minute talks. It's hysterical. This is way worse than I imagined it would be. He says he doesn't know why he picked 12.5 as the number he wanted, it could have been higher, it was just random.

[YoloinOhio]

@mikefreemanNFL: Problem for Brady is his testimony doesn't match this: http://t.co/LcAvrvCrDF

[What a Tuel]

In all of his busy daily activities as a famous NFL QB, he simply can't be bothered to remember who he tells how he likes his footballs, or that he even likes his footballs any specific way.

 

Sounds a lot like this:

[Go Kiko go]

For anyone who's curious, the first twenty or so paragraphs of the NFLPA's answer that they filed today to the NFL's complaint give a pretty good summary of the reasons the NFLPA and Brady believe that his suspension should be overturned.

 

 

 

7. Tom Brady quarterbacks the New England Patriots and is one of the most successful players—on and off the field—in NFL history. This past February, he led the Patriots to their fourth Super Bowl championship during his tenure with the team, tying him for the most all-time Super Bowl victories by a quarterback.

 

8. Following the 2015 AFC Championship Game, the NFL launched an investigation into whether the Patriots footballs were improperly deflated below the pressure range (“PSI”) permitted by NFL rules. Goodell commissioned one of the League’s regular outside law firms, Paul, Weiss, Rifkind, Wharton & Garrison (“Paul, Weiss”), led by partner Theodore Wells, to co-lead the “Deflate-gate” investigation along with NFL Executive Vice President and General Counsel Jeffrey Pash (the “Wells-Pash Investigation”). The League and Paul, Weiss have publicly touted the Wells-Pash Investigation as “independent.”

 

9. The investigation was conducted, and punishments imposed, under the NFL’s Policy on Integrity of the Game & Enforcement of Competitive Rules (“Competitive Integrity Policy”). Id. However, by its own terms, the Competitive Integrity Policy applies to Clubs—not players. Accordingly, the Competitive Integrity Policy was never given to players as part of the Player Policies that are distributed to players before each season, and it is undisputed that Brady never saw the Competitive Integrity Policy prior to these proceedings. NFLPA Ex. 210, Award at 17 n.19.

 

10. On May 6, many months and many millions of dollars in legal fees later, Paul, Weiss and the NFL issued the “Wells Report” summarizing the findings from their investigation. The NFL’s General Counsel Jeffrey Pash reviewed and commented on the purportedly independent Wells Report before its public release. The Report concluded that it was “more probable than not” that two Patriots equipment employees—John Jastremski and Jim McNally— had violated the Competitive Integrity Policy by “participat[ing] in a deliberate effort to release air from Patriots game balls after the balls were examined by the referee” prior to the start of the AFC Championship Game. NFLPA Ex. 7, Wells Report at 2. The Wells Report reached this conclusion notwithstanding the denials of Jastremski and McNally and the absence of any other witness or document directly supporting the claims of ball deflation. Moreover, even though footballs are expected to naturally deflate when moving from a warm locker room to a cold- weather environment (like the AFC Championship Game), the Wells Report concluded that human intervention was “more probable than not” based on a statistical and scientific analysis. At the same time, however, the Wells Report conceded that this analysis rested on numerous “assumptions”—because of the League’s failure to record the necessary data—and that “varying the applicable assumptions can have a material impact upon the ultimate conclusions.” Id. at 13.

 

11. With respect to Brady’s alleged role, the Wells Report findings were even more limited. The Report concluded it was “more probable than not that Brady was at least generally aware” of the alleged misconduct by McNally and Jastremski. Id. at 17 (emphasis added). The Wells Report did not find that Brady actually knew about any ball deflation at the AFC Championship Game; it did not find that Brady directed or authorized any ball deflation; nor did it find that Brady even had any knowledge of the Competitive Integrity Policy pursuant to which he was punished and the Wells-Pash Investigation was conducted.

 

12. After the Wells Report was released, the Union and Brady waited to see what, if any, action Commissioner Goodell would take. As the Commissioner, Goodell—and no one else—has the exclusive authority under the CBA to take certain disciplinary actions against players for conduct detrimental to the League. But, in this case, Goodell improperly abdicated his CBA role and delegated his disciplinary authority to NFL Executive Vice President Troy Vincent.

 

13. Vincent, invoking the Competitive Integrity Policy, and resting solely on the limited factual conclusions from the Wells Report about Brady’s alleged “general awareness” suspended Brady for four games. NFLPA Ex. 10. The applicable League Policies for Players (“Player Policies”) were not even mentioned in Vincent’s disciplinary letter. Vincent also based this punishment on Brady’s purported failure to cooperate with the Wells-Pash Investigation. Id. The full extent of the alleged “non-cooperation” found by Wells, and cited by Vincent, was Brady declining, on the advice of his agents who were also acting as his attorneys, to respond to Wells’ requests to produce certain of his private text messages and e-mails. Id.

 

14. On May 14, 2015, Brady timely appealed his suspension. Goodell decided to serve as the arbitrator. Brady and the NFLPA moved for his recusal because, among other things, Goodell had directed the unlawful delegation of his CBA disciplinary authority to Vincent. Thus, as arbitrator, Goodell would have to determine the facts and CBA legality of his own conduct. Moreover, Goodell was an essential witness on the delegation issue and could not lawfully serve as both arbitrator and fact witness in the same proceeding. NFLPA Ex. 11. The Commissioner nonetheless rejected the recusal request. NFLPA Exs. 157, 160.

 

15. On June 23, 2015, Goodell held the arbitration. See NFLPA Ex. 204. The hearing defied any concept of fundamental fairness. Prior to the hearing, Goodell had ruled that Brady and the Union could not question essential witnesses, denied them access to the investigative files underlying the Wells Report (which were nonetheless available to the NFL’s counsel at the arbitration), and summarily rejected Brady’s unlawful delegation argument without considering any evidence (other than “facts” decreed by Goodell himself in his decision). At the hearing itself, Paul, Weiss—the purportedly “independent” law firm whose findings about Brady were being challenged—abandoned all pretense of objectivity, and actively participated as counsel for the NFL conducting direct and cross-examinations of witnesses (including Brady’s). A Paul, Weiss partner represented the NFL for most of the hearing, even though he was a signatory to the Wells Report and his law partner (Wells) was a fact witness at the same hearing. Paul, Weiss also conducted the hearing while in possession of critical evidence—including interview summaries of key witnesses—that Brady had requested but the NFL refused to give him.

 

16. In addition, the arbitration established that the NFL had no procedures whatsoever for collecting information essential to determining whether the Patriots balls had deflated due to environmental factors or human intervention. In fact, just one week ago, the NFL let it be known that it is for the first time implementing procedures for ball pressure testing—a stark concession that it had no procedures in place when the data on which Brady’s punishment was based was collected. The League’s admitted failure to timely implement any such data collection protocols caused the League’s scientific and statistical consultants to make a multitude of unsupported assumptions and rendered their analysis utterly unreliable as a fair and consistent basis for imposing discipline.

 

17. And, the hearing confirmed all of the undisputed facts about the lack of proper notice.

 

18. On July 28, 2015, Commissioner Goodell issued the Award upholding Brady’s suspension. Goodell’s Award is little more than a rehash of the Wells Report, plus new and unfounded and provocative attacks on Brady’s integrity. At the same time, the Award ignores the fundamental legal arguments presented by the Union which require that the Award be set aside.

 

19. For example, the Award disregards the myriad defects in notice—contending that Brady’s knowledge that, in the broadest sense, he could be suspended for “conduct detrimental” eliminated the need for the League to provide any notice about which policies could be applied, and what the potential penalties for violations of the applicable policies might be. But this contention had already been rejected by the ruling in Peterson (which the Award also ignores), where the domestic violence conduct at issue constituted conduct detrimental under any policy, but where the punishment had to be vacated because it violated the essence of the CBA requirement that Peterson have advance notice of the policy and penalties to which he could be subjected. NFLPA Ex. 153.

 

20. Here, the applicable policy concerning equipment tampering was contained in the Player Policies, but the Award ignores the terms of those Policies because they provide only for fines for a first time offense—a punishment Goodell apparently deemed insufficient. NFLPA Ex. 114 at 15. The Award also ignores Vincent’s application of a “generally aware” disciplinary standard that was pulled from whole cloth without notice and applied to a player for the first time in NFL history.

 

21. The most the Award has to say about notice is to try to deny, in a single footnote, that neither the Competitive Integrity Policy nor any other policy was applied. NFLPA Ex. 210, Award at 17, n.19. Putting aside that this assertion belies the arbitration record that Vincent did apply the Competitive Integrity Policy to Brady and punished Brady for being generally aware that Patriots equipment personnel violated that policy, it does not save the Award from vacatur. According to the Award, Brady was purportedly suspended for conduct detrimental without application of any particular policy. But there is a specific Player Policy concerning player equipment violations, and that policy only provides notice of fines for violations of that policy, not of suspensions for being generally aware of someone else’s violation. This is just the type of blatant notice defect which resulted in vacatur in Peterson. There, Peterson had notice of one version of the Personal Conduct Policy distributed to players, only to have the Commissioner retroactively apply a different version of the Personal Conduct Policy, with different rules and penalties, that was not promulgated until after the conduct at issue.

 

22. The Award also makes much of Brady’s purported non-cooperation, including a brand new, hyperbolic and baseless accusation—that played no part in the discipline imposed by Vincent—that Brady “destroyed” his cell phone after being advised by his agents-lawyers not to turn over private communications to the NFL’s outside law firm. This issue is a complete red herring because the NFL already had all of the relevant text communications by Brady from other Patriots personnel—a fact established by Brady’s telephone records, which were produced at the hearing, and which showed the time and date of every text and phone call to or from Brady and Patriots personnel (or anyone else) during the relevant period. NFLPA Exs. 1, 3.

 

23. But most importantly for purposes of this Answer and Counterclaim, Goodell’s decision on the punishment for alleged non-cooperation yet again violated the CBA requirement of notice. As his predecessor, Commissioner Paul Tagliabue, ruled when he served as a CBA arbitrator in the so-called “Bounty-gate” matter:

 

There is no evidence of a record of past suspensions based purely on obstructing a League investigation. In my forty years of association with the NFL, I am aware of many instances of denials in disciplinary proceedings that proved to be false, but I cannot recall any suspension for such fabrication. There is no evidence of a record of past suspensions based purely on obstructing a League investigation.

 

NFLPA Ex. 113, Bounty, slip op. at 13 (2012) (Tagliabue, Arb.).

 

24. The Award further ignores the testimony of Wells himself that he never once told Brady that discipline could flow from declining to produce his personal text messages or e-mails:

 

I want to be clear—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.

 

Hr’g Tr. 336:15-23 (Wells).

 

25. With respect to the other grounds for vacatur, the Award also turns a blind eye to the NFL’s undisputed failure to implement procedures for testing the footballs at the AFC Championship Game such that there was no fair and consistent basis for the NFL to base any punishment on its consultants’ “assumptions” about that testing; ignores the procedural defects depriving Brady of a fundamentally fair hearing; and says nothing about Goodell’s evident partiality.

 

26. In a public statement issued on July 29, Patriots Owner Robert Kraft summarized the Award as follows:

 

[Rather than make this post longer than it already is, I removed the transcription of Kraft's press conference remarks]

 

27. As in Peterson, a Federal Court should again vacate the Award, which (i) violates the CBA law of the shop requirement of notice and express CBA terms, (ii) violates the CBA law of the shop requirement of fairness and consistency, (iii) is the product of fundamentally unfair proceedings, and (iv) was issued by an evidently partial arbitrator.

 

28. Because the Award was issued on the eve of the 2015 NFL season, it will irreparably harm Brady if he misses games while the Court considers the merits of this dispute. The NFLPA and Brady will file motions seeking relief prior to September 4, 2015, when the Patriots begin final preparations for their first regular season game.

 

 

Edited August 5, 2015 by Go Kiko go

[Kelly the Dog]

@ProFootballTalk: Ravens assistant alerted Colts to issue with footballs http://t.co/0Kq143wS7K

I like this part:

 

"As far as the gameballs are concerned it is well known around the league that after the Patriots gameballs are checked by the officials and brought out for game usage the ballboys for the patriots will let out some air with a ball needle because their quarterback likes a smaller football so he can grip it better, it would be great if someone would be able to check the air in the game balls as the game goes on so that they don’t get an illegal advantage,” Sullivan wrote.

 

But they didn't cheat.

[Kelly the Dog]

The explanation of destroying the phone is priceless.

 

http://www.foxsports.com/nfl/story/tom-brady-new-england-patriots-appeal-hearing-interesting-excerpts-deflategate-ted-wells-080415