McCann: Going to be a very tense hearing on Deflategate.

Rob0729 said:

The NFL has upped the rhetoric by saying that Brady is the mastermind of a cheating enterprise to make their appeals stronger, but there is no evidence of that by their own investigation. So they are knowingly accusing Brady of something they know they have no proof to strengthen their appeal and rolling the dice that Brady won't sue for defamation.

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Has the NFL ever actually said that outside of legal filings? I don't recall them doing so.

And stuff contained in legal filings cannot give rise to a defamation action. It can be as defamatory as all get-out, but that doesn't matter since legal filings are privileged against any defamation actions.

(The privilege can be lost if the filer publishes the filings with the media. But if the media gets the filings from the court themselves, the privilege stays intact.)

As much as we would like to see a defamation suit, I don't think it'll ever happen. What this appeal comes down to are which judges are "randomly" assigned to the case. If it's liberal (I know that word makes many people here wet their undies and vomit), pro-labor judges, Brady is fine. If it's conservative, pro-management judges, he could be in trouble. That's what it comes down to.

Rob0729 said:

Brady actually has a strong case (at least for a celebrity) if he chooses to go that route, the NFL's own report said that Brady was only "more likely than not" "generally aware" of the balls being tampering with. The NFL has upped the rhetoric by saying that Brady is the mastermind of a cheating enterprise to make their appeals stronger, but thereh is no evidence of that by their own investigation. So they are knowingly accusing Brady of something they know they have no proof to strengthen their appeal and rolling the dice that Brady won't sue for defamation.

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The standard for Brady as a public figure to prevail is much higher. He must prove what is called N Y Times malice, that is the other party acted with knowledge of the falsity of their statement or reckless indifference to the truth of it. The drawback is that if he does file suit, it opens him and his life open to discovery when the NFL questions him. While Brady's lawyers will obviously have the same right, we have already seen the NFL lie and it wouldn't shock me if they already have sanitized their emails and deleted anything that could be incriminating or used against them......The question he has to ask is, "is it worth it?" If Brady and Kessler prevail at the 2nd Circuit and Goodell comes out and says," he won in court but we know he cheated and he's guilty" Brady may just decide "F$%* it" I'm going after him and filing suit.........

Goodell did get caught lying intentionally when he claimed Brady testified that he never spoke to Jastremski about the game balls when in fact Brady had said just the opposite and Goodell knew it.

I think Brady has a factual case to make against the league and ESPN that they deliberately lied to defame him I just don't think he is willing to spend years in court arguing about this. I think he wants this behind him so he can get on with winning more Championships before he hangs them, up.

I'm not even worried with this anymore, the genesis of all this **** is something that never happened and after a great season even the haters don't talk about that anymore, the subject just died. I have faith the judges from the 2nd circuit will keep Berman's decision, slap Goodell in the butt and leave him without dessert. That's how he should be treated, like a spoiled child.

QuantumMechanic said:

Has the NFL ever actually said that outside of legal filings? I don't recall them doing so.

And stuff contained in legal filings cannot give rise to a defamation action. It can be as defamatory as all get-out, but that doesn't matter since legal filings are privileged against any defamation actions.

(The privilege can be lost if the filer publishes the filings with the media. But if the media gets the filings from the court themselves, the privilege stays intact.)

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The closest they have come is Goodell's upholding of Brady's suspension from July.

http://media.nj.com/realtimesports_impact/other/07282015 -- FINAL Decision Tom Brady Appeal.pdf



"In short, the available electronic evidence, coupled with information compiled in the investigators' interviews, leads me to conclude that Mr. Brady knew about, approved of, consented to, and provided inducements and rewards in support of a scheme by which, with Mr. Jastremski's support, Mr. McNally tampered with the game balls."

"Mr. Brady's affirmative action to ensure that this information would not be available leads me to conclude that he was attempting to conceal evidence of his personal involvement in the tampering scheme, just as he concealed for months the fact that he had destroyed the cellphone requested by investigators."

Patsfanin Philly said:

The standard for Brady as a public figure to prevail is much higher. He must prove what is called N Y Times malice, that is the other party acted with knowledge of the falsity of their statement or reckless indifference to the truth of it. The drawback is that if he does file suit, it opens him and his life open to discovery when the NFL questions him. While Brady's lawyers will obviously have the same right, we have already seen the NFL lie and it wouldn't shock me if they already have sanitized their emails and deleted anything that could be incriminating or used against them......The question he has to ask is, "is it worth it?" If Brady and Kessler prevail at the 2nd Circuit and Goodell comes out and says," he won in court but we know he cheated and he's guilty" Brady may just decide "F$%* it" I'm going after him and filing suit.........

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You mean like how Goodell lied about Brady's testimony in his appeal decision? Or the fact that his own investigation found that he at most had knowledge of McNally deflating balls and he has multiple times twisted it in that he was the one who gave the orders to do so? There is plenty of examples of malice.

Brady_to_Moss said:

I feel like i am watching "Making a murderer" all over again

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Making a Deflatorer?

QuantumMechanic said:

Has the NFL ever actually said that outside of legal filings? I don't recall them doing so.

And stuff contained in legal filings cannot give rise to a defamation action. It can be as defamatory as all get-out, but that doesn't matter since legal filings are privileged against any defamation actions.

(The privilege can be lost if the filer publishes the filings with the media. But if the media gets the filings from the court themselves, the privilege stays intact.)

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Goodell lied about Brady's testimony in the his appeal decision to make him look more guilty. That is malice right there. Goodell claimed that in his appeal, Brady claimed that after the AFCCG he never spoke to Jastremski about deflated footballs and all the spike in communication between the two were in preparation for the footballs (a lie that Wells portrayed in his report too) to make Brady look like a liar. The transcripts (after Judge Berman made them public) show that Brady specifically said that he did question Jastremski about the allegations and wanted to know what was going on.

But is court filings really protected when the language is blatant lies and defamatory? Especially when the judge specifically ordered that all court filings would be made public?

If Brady loses this I will quit my job and become a shepherd. Not happening. This isn't even close.

Oh and don't forget the 11 of 12 balls report that came from a "league source" (actually Mort said he got the information from multiple sources) that was blatantly false and the NFL refused to correct no matter how much the Patriots begged them to. And as Mike Florio consistently points out, everything else reported about the league that is wrong no matter how minor is disputed by the league within hours if not minutes.

Brady can use that in a defamation case. And the burden of proof would be on the NFL to prove the information didn't come from them because in a civil case the burden of proof is not nearly as high in a criminal case and the logical inference is that the story came from an NFL employee because Mortensen wouldn't have published it otherwise and it would be clear malice for not correcting the information when they knew information an NFL employee leaked was not correct. All a jury would need to do is determine that it is more likely than not that the league leaked that story to show malice. Of course it would be a gamble on Brady's part that a jury would find that way.

QuantumMechanic said:

Has the NFL ever actually said that outside of legal filings? I don't recall them doing so.

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Someone - and we all know who it was - told Mortensen that 11 of 12 were 2 PSI below.

Dave Gardi sent the Patriots a letter that said one was as low as 10.1, albeit that wouldn't count as defamation since it was a private letter.

Last, but certainly not least, Roger Goodell has made MANY statements in public (beyond legal filings) which were proven to be lies.

IANAL, but the NFL's overall reckless disregard for truth makes it a strong case IMHO.

Jackson 2 said:

As much as we would like to see a defamation suit, I don't think it'll ever happen. What this appeal comes down to are which judges are "randomly" assigned to the case. If it's liberal (I know that word makes many people here wet their undies and vomit), pro-labor judges, Brady is fine. If it's conservative, pro-management judges, he could be in trouble. That's what it comes down to.

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I know that's the conventional wisdom, but this isn't exactly your typical management/labor dispute, so I'm not sure traditional partisanship holds true.

The NFLPA has no greater ally than Judge Doty, and he was a Reagan appointee.

Patsfanin Philly said:

The standard for Brady as a public figure to prevail is much higher. He must prove what is called N Y Times malice, that is the other party acted with knowledge of the falsity of their statement or reckless indifference to the truth of it. The drawback is that if he does file suit, it opens him and his life open to discovery when the NFL questions him. While Brady's lawyers will obviously have the same right, we have already seen the NFL lie and it wouldn't shock me if they already have sanitized their emails and deleted anything that could be incriminating or used against them......The question he has to ask is, "is it worth it?" If Brady and Kessler prevail at the 2nd Circuit and Goodell comes out and says," he won in court but we know he cheated and he's guilty" Brady may just decide "F$%* it" I'm going after him and filing suit.........

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This is what makes me think Jastremski and McNally should be the ones to file. They are not public figures and they can do discovery on the NFL, but Brady remains a 3rd party so the NFL cannot do discovery on him.

XLIX said:

I know that's the conventional wisdom, but this isn't exactly your typical management/labor dispute, so I'm not sure traditional partisanship holds true.

The NFLPA has no greater ally than Judge Doty, and he was a Reagan appointee.

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Yes, as part of a larger deal with Democrats. Look it up.

Jackson 2 said:

Yes, as part of a larger deal with Democrats. Look it up.

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If you have a point you want to make, please feel free to present it. I am not going to research a point you are trying to make.

Jackson 2 said:

As much as we would like to see a defamation suit, I don't think it'll ever happen. What this appeal comes down to are which judges are "randomly" assigned to the case. If it's liberal (I know that word makes many people here wet their undies and vomit), pro-labor judges, Brady is fine. If it's conservative, pro-management judges, he could be in trouble. That's what it comes down to.

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I don't expect a defamation suit, but because Brady doesn't want his life torn apart in a trial. But Brady would likely file in Massachusetts State Court (according to Michael McCann) and that would favor him.

And whether a judge is prolabor or promanagement wouldn't matter in a defamation case. It isn't a labor issue. And likely it would be a jury trial (which would favor Brady too).

XLIX said:

If you have a point you want to make, please feel free to present it. I am not going to research a point you are trying to make.

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Of course you're not.

Rob0729 said:

I don't expect a defamation suit, but because Brady doesn't want his life torn apart in a trial. But Brady would likely file in Massachusetts State Court (according to Michael McCann) and that would favor him.

And whether a judge is prolabor or promanagement wouldn't matter in a defamation case. It isn't a labor issue. And likely it would be a jury trial (which would favor Brady too).

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Pro labor or anti labor has no bearing in a defamation suit. I don't know how or why you would have concluded that I thought that was the case. It clearly isn't.

Jackson 2 said:

Pro labor or anti labor has no bearing in a defamation suit. I don't know how or why you would have concluded that I thought that was the case. It clearly isn't.

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Sorry, I misread your post because you had two completely different thoughts in one paragraph. One sentence you were talking about the defamation and the next you switched to the appeal and I missed that.