“The ‘overwhelming evidence’ comment by Judge Chin, I was awestruck. I had no idea where that was coming from,” McCann said. “Even if you take the Wells Report at its word, it doesn’t make that point. This is taking what was ‘more probably than not’ and transforming it into ‘beyond a reasonable doubt.’ I don’t understand the sequence of how that happened in his mind.”
The appeal hearing was expected to be an evaluation of Judge Richard Berman’s ruling on the case, not an analysis of the case itself. Expectations certainly did not match up with reality, as the judges focused almost exclusively on details from the Wells Report. One of the pieces of evidence they felt was particularly damning was the destruction of Brady’s cell phone.
“Brady turned over all of the phone records. He turned over his emails. And by phone records, according to [NFLPA attorney Jeffrey] Kessler, Brady went to the phone company, he got all of the phone numbers that Brady called and texted, and the NFL already had all of those texts from [John] Jastremski and [Jim] McNally and others,” McCann said. “So, it’s not as if there’s this pool of information that Brady was hiding. The Wells Report and the NFL already had it. It’s almost like the judges weren’t as familiar with the facts as others are.”
Added McCann: “It’s very bizarre. Kessler tried to use the phone as a way of showing that Brady was treated unfairly. Specifically, Brady is punished by [Roger] Goodell after the Wells Report comes out. Brady then goes to arbitration, he goes to the appeal, and Goodell goes against him. Well, during that appeal, this phone issue surfaced, and Kessler said, ‘Look, you can’t come up with some new ground to punish Tom Brady during the appeal,’ because if you do that there’s no second appeal, there’s no double appeal or anything like that. So it’s really unfair to Brady to bring up new reasons during an appeal. We don’t do that in law. Judge Parker basically said, ‘Well, arbitrators do what they want.’ I was really surprised and, frankly, disappointed by that kind of reasoning.”
