Forbes: Why Tom Brady Will Win If He Sues

MassPats38 said:

Do you find it a bit odd that this lawyer opines that Brady's ability to prevail 'predominantly' relies on discovery without ever defining the legal issues for which discovery might be sought?

The discovery tools described are a nice summary of civil procedure. I would give his opinion a little more weight if he actually described a legal theory for the civil complaint before offering what appears to be no more than general rules of civil litigation and the value of discovery to the typical case. That tends to be true when the issues are broader, typical of general civil claims anticipating a full trial. In arbitration reviews, there may be little or no discovery. I will be very interested to see if any non-arbitration theories are advanced, and if so how they can avoid a motion to dismiss in order to see discovery at all (if I were the NFL, I would move to stay any and all discovery until the motion to dismiss were decided, citing as good cause the general principles favoring deference to arbitration).

Discovery tools and standards are tethered to claims and defenses. All of these tools have counter-tools, and even a neophyte litigator knows how to shut down a discovery fishing expedition. They are called objections and motions to quash.

Click to expand...

I agree with you. However, we're stuck pointing out the little points that people are getting right, because so few of them have been consistently good.

Deus Irae said:

I've never really understood why people felt Brady would be worried about discovery. Given the likely scope of any appeal, the worry should be pretty much all on the NFL side.

Click to expand...

I agree. Tom Brady has virtually already subjected himself to discovery. Other than forcing him to turn over his phone, which they've already tried to do, what in the world could the NFL's attorneys get from Brady that they haven't already done?

They've already questioned him for hours on end, looked at Patriots security footage, talked to all sorts of Patriots personnel.

MassPats38 said:

Discovery tools and standards are tethered to claims and defenses. All of these tools have counter-tools, and even a neophyte litigator knows how to shut down a discovery fishing expedition. They are called objections and motions to quash.

Click to expand...

That might backfire against the league. Goodell has talked about how fair and open this whole thing is. (yes we all know he is full of it when he says that, but that's his official, on-the-record statement).

Even if the league is not legally obligated to release something like a cell phone record, it might not look so good if they look like they're hiding something.

YOUGOTMOSSED said:

I would imagine Brady/NFLPA's attorney are going to demand "any and all" communications between the NFL and Ted Wells/his firm. Didn't Wells provide legal advice to the NFL on separate matters? They may have to raise an attorney-client privilege objection to protect those communications.

Click to expand...

IANAL but do have some modicum of knowledge. Think it would play out like this: Brady/Kessel demand "any and all" communications between Wells and NFL, pertaining to matters at issue. Note that communications about other matters, say Richie Incognito, would not be within scope of discovery and thus wouldn't matter.

If NFL asserts blanket attorney-client privilege I think this would let B/K argue it shows Wells was not conducting an investigation but rather acting as counsel in an adversarial role, slam dunk win.

More likely, NFL asserts privilege for some communications, identifies others as relating to investigation not attorney-client communications. Court may review in camera to verify privileged communications are properly identified.

Possibly, NFL says Wells had no relationship as counsel in this matter and produces all relevant communications.

ctpatsfan77 said:

It's not a given, but the CBA (and the concept of equity in law) depends on good faith. It would be fairly easy for Brady and the NFLPA to argue that there was so little good faith shown by the NFL here (e.g., intentionally allowing false information to persist) that the NFL has forfeited any claim that the CBA overrides the ability to sue.

Click to expand...

Also, it's unclear whether Goodell and the league have played fast and loose with any CBA provisions. For example IIRC at one time there was question about whether the league could compel Brady to provide his cell phone under the CBA. Note that Favre would not be a precedent because in his case the phone was central to the matter being investigated, where Brady's phone could well have been a fishing expedition.

I thought this was a pretty poor article. I guess it would have been OK if the point of the story was, "the effect of discovery has on civil litigation". Here's my concern. The merits of the Federal court case that Brady and the NFLPA are about to start. is going to be decided on the VERY narrow issue of did the NFL follow the proper appeals procedures as subscribed to in the latest CBA.

From what I understand, THAT is the only issue. It will have nothing to do with the events of the AFCCG. It will have nothing to do with good or bad science. It will have nothing to do with the bag job Kensil tried to implement or the slander job Goodell followed with after the fact. The issue is very limited, so I would suspect what each side may request for discovery will also be very limited. For example, demanding emails concerning Kensil's communications before and after the game would probably be deemed irrelevant. Though it CERTAINLY would be deemed relevant in any Defamation suit.

This case will be all about whether the league followed the correct PROCEDURES in the appeals process. However that being said, I would wonder if they can subpoena owner communications to discover just who were the "small group of influential owners" that were pushing for Goodell to hold the line. Because that kind of influence to the so called unbiased arbiter of an appeals process seems clearly to break any concept that this was a fair and open process. Once the hearing is over, NOONE is supposed to be able to lobby the arbiter. Now THAT would be an interesting piece of discovery.

far far beyond all this myopic "narrow issue" bullcrap is the need for the federal government to investigate this NFL entity and its antitrust exemption with the same fervor and forensic auditing it applied to the Enron and Ivan Boesky scandals.

A comatose, sub rhesus monkey brained humanoid on Planet Blind Bat can plainly see the entire structure of the NFL offices is completely and utterly corrupt.

Goodell has had drug results, video tape, reports from police investigations, etc to issue punishments. Even with Spygate there was clear evidence of a minor violation. There is no consistent pattern in his punishments as he seems to make it up as he goes along. Mostly I think he issues a harsh punishment and reacts to what the media and public are saying when it is time to hear appeals.

With Brady he is entering a whole new area of punishment. More probable then not he was generally aware is a whole new standard to base punishment on. Now you are getting into I think he is guilty so I am going to punish them. I think Brady and the NFLPA have plenty of grounds that a court would hear their case.

n6249c said:

IANAL but do have some modicum of knowledge. Think it would play out like this: Brady/Kessel demand "any and all" communications between Wells and NFL, pertaining to matters at issue. Note that communications about other matters, say Richie Incognito, would not be within scope of discovery and thus wouldn't matter.

If NFL asserts blanket attorney-client privilege I think this would let B/K argue it shows Wells was not conducting an investigation but rather acting as counsel in an adversarial role, slam dunk win.

More likely, NFL asserts privilege for some communications, identifies others as relating to investigation not attorney-client communications. Court may review in camera to verify privileged communications are properly identified.

Possibly, NFL says Wells had no relationship as counsel in this matter and produces all relevant communications.

Click to expand...

I think Wells status as an "independent investigator" is very much an issue and that makes his communications with the NFL on other matters relevant and discover-able in my opinion.

In Federal cases I've handled, when a party asserts that some communications are privileged and protected from disclosure, the court requires you to submit a "privilege log" identifying the communication, when it was made, in what form it was made, and what the ground of the privilege is (typically attorney-client).

If Brady's lawyers play this right, they can force the NFL into taking the uncomfortable position that this "independent investigation" was performed by their lawyer. That would be a significant victory.

Joker said:

far far beyond all this myopic "narrow issue" bullcrap is the need for the federal government to investigate this NFL entity and its antitrust exemption with the same fervor and forensic auditing it applied to the Enron and Ivan Boesky scandals.

A comatose, sub rhesus monkey brained humanoid on Planet Blind Bat can plainly see the entire structure of the NFL offices is completely and utterly corrupt.

Click to expand...

Racketeering?

patfanken said:

From what I understand, THAT is the only issue. It will have nothing to do with the events of the AFCCG. It will have nothing to do with good or bad science. It will have nothing to do with the bag job Kensil tried to implement or the slander job Goodell followed with after the fact. The issue is very limited, so I would suspect what each side may request for discovery will also be very limited. For example, demanding emails concerning Kensil's communications before and after the game would probably be deemed irrelevant. Though it CERTAINLY would be deemed relevant in any Defamation suit.

Click to expand...

So what's stopping Brady from concurrently filing a defamation suit? Didn't work out for Vilma but Brady's case is different. It's not clear to me whether the current CBA is a bar to such a lawsuit.

Canuck said:

Goodell has had drug results, video tape, reports from police investigations, etc to issue punishments. Even with Spygate there was clear evidence of a minor violation. There is no consistent pattern in his punishments as he seems to make it up as he goes along. Mostly I think he issues a harsh punishment and reacts to what the media and public are saying when it is time to hear appeals.

With Brady he is entering a whole new area of punishment. More probable then not he was generally aware is a whole new standard to base punishment on. Now you are getting into I think he is guilty so I am going to punish them. I think Brady and the NFLPA have plenty of grounds that a court would hear their case.

Click to expand...

The goodell and the NFL have the same approach to punishment as parity. The better you are the tougher your punishment. If you get punished for no reason, it means you are the best.

All of this nonsense over air pressure in a football. This should have been handled with a phone call or written warning. The NFL should exonerate the Brady & the patriots and give the money they would have spent on fighting this in court to charity. What a joke.

patfanken said:

I thought this was a pretty poor article. I guess it would have been OK if the point of the story was, "the effect of discovery has on civil litigation". Here's my concern. The merits of the Federal court case that Brady and the NFLPA are about to start. is going to be decided on the VERY narrow issue of did the NFL follow the proper appeals procedures as subscribed to in the latest CBA.

From what I understand, THAT is the only issue. It will have nothing to do with the events of the AFCCG. It will have nothing to do with good or bad science. It will have nothing to do with the bag job Kensil tried to implement or the slander job Goodell followed with after the fact. The issue is very limited, so I would suspect what each side may request for discovery will also be very limited. For example, demanding emails concerning Kensil's communications before and after the game would probably be deemed irrelevant. Though it CERTAINLY would be deemed relevant in any Defamation suit.

Click to expand...

There's more than one way to skin a cat. Brady can also claim that Goodell is being mean to him and his team in retaliation for Brady being a plaintiff in the prior anti-trust suit against the NFL. That would open the door to discovery of evidence of unfair/inconsistent treatment.

YOUGOTMOSSED said:

I would imagine Brady/NFLPA's attorney are going to demand "any and all" communications between the NFL and Ted Wells/his firm. Didn't Wells provide legal advice to the NFL on separate matters? They may have to raise an attorney-client privilege objection to protect those communications.

Click to expand...

You can't demand "any and all" of anything and expect to get it.

NFL should have just fudged the psi numbers from the get go. They may as well have.

This article reads like it was written by a young lawyer who suffered a year or two in a big law firm. It has no substance, like the legal standard for judicial review and whether Wells' opinion violates that standard. Discovery and its cost may lead to settlement but the essence of any settlement or decision will still evolve from a discussion and analysis of the facts and the law.

After reading Wells' report and comparing Goodell's punishment given to Brady to other cases, this is pretty much the textbook definition of "arbitrary and capricious," which is the standard for judicial review of an arbitrator's decision. I'd love to be in Kessler's shoes no matter where the case is venued.

The NFL is so screwed, at least imo. There is no doubt in my mind that the league office has been both covering up an attempted frame job and trying to orchestrate events to achieve the desired ending from the day of the AFCCG onward, and if Kessler gets the kind of discovery they are taking about in this article then the code of silence they enforce on their broadcast partners and the media who cover them will no longer be enough to hide their misconduct. The emperor will truly no longer be wearing any clothes and this whole charade will come undone, and when it does this NFL league office will come undone with it. If accurate this explains why Gödel hasn't ruled, as he is catatonic with fear, and league lawyers may well be telling him to do the one thing he wants to do least, exonerate Brady and make this all go away. I still don't think he will do so as he is far too arrogant to acknowledge the depth and breath of his mistakes, but there may be considerable pressure inside the legal offices at NFL headquarters to do just that. And as aggravating as this entire charade has been if it leads to a housecleaning. on Madison Avenue then it will have all been worth it.


*Sal Pal apparently just went on record that he believes that NFL legal counsel are telling Gödel to exonerate Brady because they are certain to lose in court, and that Gödel is now trapped by the very circumstances they have created. Lmao-too f.cking funny.

raduray said:

The article doesn't address the bar to court interference in a grievance that should have been handled by a CBA agreement. To me, that is the biggest challenge. Will a court agree to hear the case?

Click to expand...

Were it anything but the NFL, I'd agree. However seeing over the years how even the Nation's Supreme Court has insinuated itself into sports including baseball and football, my guess would be most of these guys are just hoping the case comes their way. Now the agendas could be different depending on where it's filed, but I'd be shocked if nobody would hear the case. Seems hugely unlikely to me. Maybe I'm naive.

TomPatriot said:

You can't demand "any and all" of anything and expect to get it.

Click to expand...

Then you follow up with- which communications are you objecting to disclosing and why?