How big of a concern is the threat of discovery to the NFL in a Brady lawsuit?

I have to think that one of the reasons for the delay is the appeal ruling is behinds the scenes negotiating to avoid a lawsuit. I think that the NFL does not want to get into a situation where they have to reveal communications during the entire saga, particularly pre-AFCG, the first week after the AFCG, and communications between Ted Wells, Exponent and the NFL. However, I am not sure how Brady would get access to these communications. I'd like to ask the legal experts here if they can shed any light on what it would take in the following scenarios:

1. Suing on the basis of unfair labor practices. What bar needs to be cleared? Simply a judge declining a motion by the NFL to dismiss the suit? Would this give the Brady team access to all of the communications?

2. Suing for defamation. This has been more closely linked with discovery on the forum. What is the threshold to being discovery in this case, and would they have access to all communications?

3. Are there other legal avenues to pursue that would give access to discovery?

Without a way to get to discovery and potentially embarass the NFL, I think Goodell lowers the suspension to 2 games and let's Brady fight it out in court, and if he loses a year from now, from his perspective, that's much better than going back on the Wells report and his actions thus far. But if he thinks public display of the NFL's conduct in handling the investigation is a possibility, he might be willing to cave in and reduce the suspension further.

I am not a legal expert, my understanding is that if Brady and the NFL go to court the grounds will be about the process by which the NFL suspended Brady in relation to the CBA and the punishment relative to other cases and league rules.

There would be no discovery of Brady's phone or the league's communications. The 'sting' operation the NFL ran wouldn't be part of this suit.


After the NFLPA/Brady suit is settled Brady could sue for defamation, then there would be discovery on both sides, the sting run by the NFL would be central to that case. So far no indication Brady would go that route.

patsfan13 said:

I am not a legal expert, my understanding is that if Brady and the NFL go to court the grounds will be about the process by which the NFL suspended Brady in relation to the CBA and the punishment relative to other cases and league rules.

There would be no discovery of Brady's phone or the league's communications. The 'sting' operation the NFL ran wouldn't be part of this suit.


After the NFLPA/Brady suit is settled Brady could sue for defamation, then there would be discovery on both sides, the sting run by the NFL would be central to that case. So far no indication Brady would go that route.

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I'm not too sure about there being no discovery of NFL communication. The whole "independent investigation" sham would come into play and any communication regarding that between the NFL and Wells on that area would be discoverable.

Also, any communication between Vincent and Goddell on the punishment would be a a target.

I honestly think this was a set up with Goodell and his ex-Jet buddies to try and harm the Pats. That said, if the discovery doesn't come out during the court proceedings (and this is going to court... there is no doubt about it), it will come out years later when someone blows the whistle on the whole sham of a process that took place. That said, I honestly don't think it worries Goodell. Why? Goodell is a 'tard.

I am not sure what may happen in the court of law, but I very much agree that there is some sort of negotiation happening right now. The league clearly does not want to go to court, so they are trying to find some acceptable middle ground, hence, the NFLPA recently stating that complete exoneration was the only acceptable decision.

Goodell is trying to save face, but it isn't going to happen....Therefore, we see the huge delay in the decision.

Thanks for posting those questions; they're all pertinent.

I'm not a Lawyer, but there are a couple of Attorneys with actual Litigation experience who have been posting very useful views in other threads. Hopefully, one of them will come here and answer your questions...I'll certainly be checking back. There have been a lot of amateur opinions (including a few of my own!) that have been posted out here that might or might not be of any value; many of them are clearly fanciful.

To this non-Lawyer, the post of @patsfan13 above makes sense, except I would disagree that a Defamation suit is in the cards. But, I admit that, like most who are opining out here, I really don't know what I'm talking about.

Defamation is notoriously difficult to prove (for good reason). Such a suit would not be in Brady's best interests.

primetime said:

Defamation is notoriously difficult to prove (for good reason). Such a suit would not be in Brady's best interests.

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Would Brady be able to reach discovery in a defamation lawsuit even if he weren't likely to win it? If so, could that be used as leverage in negotiations?

primetime said:

Defamation is notoriously difficult to prove (for good reason). Such a suit would not be in Brady's best interests.

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Not much harm in trying. There's actually a lot of evidence that they tried to harm his rep. The dorito dinks should sue too. I'm sure lawyers would be lining up to take that suit for free.

The NFLPA already set up some of the grounds for the appeal in their request fro Goodell to recuse himself.
One of their reasons was that they wanted him to testify as a witness. The NFLPA has a good argument here in that the referees, Kensil, Vincent, the guy who lied to the Pats about the measurments, are all employees of the league. Ignoring the league's role in all that happened is unfair to Brady's appeal and defense. I think that alone is grounds for an appeal.

If the suit is about the process, then (I would have guessed) Brady's legal team will argue that discovery should include anything that is pertinent to the claim that the disciplinary process was not set up and conducted in an independent and unbiased way.

So anything that might show that those involved in the disciplinary process had pre-judgements about the case would be very relevant -- everything that went into the selection by the NFL of Ted Wells and everything that went into the way that Wells gathered evidence.

Palm Beach Pats Fan, who has made such a great contribution, highlighted a really powerful issue. Was there contact with scientists at Columbia to investigate the science of the case? If so, why was that broken off and Exponent selected? If there's any suspicion that the reason is that Exponent was more likely to bring in the results Wells (or the NFL) wanted, that should blow the case out of the water.

(But I'm not a lawyer or an American.)

Malicious use of process could be the best bet to get to discovery.

Good question!

The NFL probably doesn't want their dirty laundry aired, but only they know what's in their laundry basket. If a judge decides to take this case, both sides lose control and the court could go off in whatever direction it wants. A judge could be offended by the fundamental unfairness and broaden the scope or could just say it was all ok under the CBA and drop it.

I'm looking forward to getting the other lawyers say on this topic.

primetime said:

Defamation is notoriously difficult to prove (for good reason). Such a suit would not be in Brady's best interests.

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I understand your point.

However, how many cases have such a black and white publicly known (at this point in time) example of a league:

1) propogating to the press and to the penalized party patently false reading measurements
2) not correcting these patently false reading measurements when they have been in the public domain for over 4 months
3) the league publicly commenting on the issue while the patently false information supplied by said league was still knowingly un-corrected.
4) the league publicly proclaiming the penalized party is being penalized because of ITS non-cooperation during an investigation where the investigator was propogating knowingly false information to the press. Wouldn't the ctual "non-cooperative party" be the league that propogated knowingly false data points (and did not care to correct the knowingly false readings for 4 months)?

I'm sorry, I am no lawyer, but this can be pretty cut and dry stuff even to a layman. We are not talking opinion (and you are right, so many defamation cases are based on subjective opinion) here.

The above four points, however, are cold, hard, objective facts that point to a coordinated and conscious defamation campaign.

shmessy said:

I understand your point.

However, how many cases have such a black and white publicly known (at this point in time) example of a league:

1) propogating to the press and to the penalized party patently false reading measurements
2) not correcting these patently false reading measurements when they have been in the public domain for over 4 months
3) the league publicly commenting on the issue while the patently false information supplied by said league was still knowingly un-corrected.
4) the league publicly proclaiming the penalized party is being penalized because of ITS non-cooperation during an investigation where the investigator was propogating knowingly false information to the press. Wouldn't the ctual "non-cooperative party" be the league that propogated knowingly false data points (and did not care to correct the knowingly false readings for 4 months)?

I'm sorry, I am no lawyer, but this can be pretty cut and dry stuff even to a layman. We are not talking opinion (and you are right, so many defamation cases are based on subjective opinion) here.

The above four points, however, are cold, hard, objective facts that point to a coordinated and conscious defamation campaign.

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I think the piece that you left out that turns mistake into defamation is that the league only disclosed the true readings to the Patriots after they agreed to keep them secret.

AndyJohnson said:

I think the piece that you left out that turns mistake into defamation is that the league only disclosed the true readings to the Patriots after they agreed to keep them secret.

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Yes, that also.

Once again, I am no lawyer and the law could be a vastly different language than common sense, but this seems to be a FAR more solid and objective defamation case than so many of the "they hurt my feelings" cases that are brought.

Even though at this point Brady apparently didn't lose a lot of money or contracts over this sham, even after everything all set and done hopefully favoring him, if he can bring facts that suggests that he was more probable than not a victim of a setup that went wrong, he can still sue. You just need to prove an attempt.

If someone tries to kill some other person and fail, that is still a crime. Ok Ok, apples and oranges, I get it, but there is a substantial amount of information that leads to this direction (the sting). I still believe the target was Belichick, maybe Brady, maybe a combo of both of them. The more the NFL takes to make a decision the more evident it is. If they had anything substantial, anything, that would be an easy decision, they have nothing and keeping this farce alive only makes things worse for them.

Nunchucks said:

I am not sure what may happen in the court of law, but I very much agree that there is some sort of negotiation happening right now. The league clearly does not want to go to court, so they are trying to find some acceptable middle ground, hence, the NFLPA recently stating that complete exoneration was the only acceptable decision.

Goodell is trying to save face, but it isn't going to happen....Therefore, we see the huge delay in the decision.

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I disagree. I feel like the two parties have pushed most of their chips into the center of the table and are holding their cards close to the vest waiting for the other to fold or call by going to court. Neither will capitulate.

Will discovery also include who and how the information was leaked to select mouthpieces of the NFL??

IMO the NFL has more concerns about discovery and more to lose than does Brady, if he really has some.... all kids of stuff can be asked: Did Goodell consult or discuss this case with Vincent??, Did Goodell have any communication with Ted Wells and his minions??.... There are also the prior communications with the league office, Baltimore and Indianapolis.. all of that might be fair game as well. Were the Refs warned prior to the game, and if so why did they not heed to warnings?? The comments from the league official to Pats Coaches telling them that they were f...ed.

Some of the stuff and information that has been kept secret by the NFL Office for Retired and Rejected Jets Personnel may be fair game.. not sure Goodell wants that to happen.

I really don't know what to think about the probability of discovery under any circumstance, including a Defamation Suit, which might or might not be viable. I've seen enough situations where a court takes a completely different view of things that I think are "obvious" that I'm not about to say much of anything on those topics, other than to say, "maybe, maybe not."

What I do think is that the longer this drags on, the more I think Goodell knows he has a problem. And, the only reason Goodell would think he has a problem would be if owners were expressing concerns to him about the way this has all unfolded/unraveled; let's face it, Goodell has an audience of 32, of whom maybe six to eight "really count." If he thought everything would be copacetic in the minds of his audience if he rubber-stamped Vincent's "ruling" (or made a token reduction in the suspension), he would have done so already.

Not all the owners are lunatics with pitchforks. I'd be willing to guess that, while most of the non-lunatics don't like the Patriots too much, they also don't want to see the League embarrassed in court again.

I'd also be willing to guess that Goodell was thinking that he could skate by with the Wells report, until the AEI study and people like Sally Jenkins and even Florio started suggesting that all was not "well" with it. When Peter King says that he doesn't think you have enough information to make a decision, he knows he has a problem. King is not a profile in courage. He wouldn't be making that kind of statement if he didn't think there was a high probability that a court case would prove him right.

Troy Vincent went public with a diatribe against Brady a week or so ago that people interpreted in many different ways; I interpreted it as an expression of something between frustration and desperation. It's my opinion, based on absolutely no knowledge or special information, that Goodell has told him that things weren't playing out the way he planned.

Other than that, I think Reiss laid out Goodell's options very clearly:
Be tone deaf (keep it at four)
Goad Brady to sue (reduce it to three)
Play it safe (reduce it to two and still look tough to the owners while hoping that it's enough to keep it out of court...one way or the other)
Be smart (reduce it to one and hope that it's enough to keep Brady out of court)
Be fair (admit that he doesn't have enough information to conclude anything...the "Sally Jenkins out").

I have no idea what Goodell will do, but I do have a sense that he's neither smart nor fair.