Dr Pain
In the Starting Line-Up
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- Apr 29, 2007
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Went through the situation and Wells report. It is pretty late now so if I am a bit inarticulate please forgive as it is way too late for me but want to get this out though I am a bit spent.
Effectively NFL constrained by Wells report if they use it as the basis of sanctions so they live or die by what is in there. At an arbitration hearing they will not be able to introduce new evidence and that effectively an arbitration is run like a trial. Brady can bring what ever evidence reports, witnesses he wants.
* Crappy morning update. Did not know that Goodell is the default arbitrator and was based on an assumption of a non biased independent arbitrator. (What a crappy union agreement) Goodel has Vincent giving the penalty because Goodall can't arbitrate a penalty he put in place. Goodell could claim he is unbiased, appoint himself, suspend Brady and Brady would miss games as this is fought.*
Perceived areas NFL could act and attempt to punish Brady
1) Perceived knowledge of tampering
2) Perceived lying - He also claimed he knew neither the identity nor role of Jim McNally, the officials’ locker room attendant.
3) Perceived as uncooperative with investigation
1) Perceived knowledge of tampering - “it is more probable than not” that Patriots locker room attendant Jim McNally and Patriots equipment assistant John Jastremski deliberately released air from footballs after the balls were examined by the referees. The report also concludes that “it is more probable than not” that Brady “was at least generally aware of the inappropriate activities of McNally and Jastremski”. The NFL can only use the Wells report in arbitration while Brady can get as many witnesses, reports etc.. as he wants. He can bring in MIT, Headsmart, anyone and as the NFL admits they don't know if in fact any tampering even took place, there is no chance they can punish Brady for this and have it stick. You can't punish Brady for an assumption he knew about something taking place which is only an assumption that it may have in fact taken place. They can punish the Patriots as they thought that the Patriots do not have the right to appeal but the Patriots legal position is 180 degrees different than that of a player. Patriots can be punished for having an employee take the balls with him on a pee stop but that has nothing to do with Brady.
2) Perceived lying - Brady reportedly claimed he knew neither the identity nor role of Jim McNally, the officials’ locker room attendant. Based on what Michael Holly stated, this statement from Brady was in reference to the October Jets game point in time where the PSI was set at 16 PSI and that Brady deals with John Jastremski primarily and it is John Jastremski who deals with McNally. Brady's statements that they if they needed to bring the rule book to the reffs is hardly an indication of attempting to tamper. Brady's calls after this broke were with John Jastremski to find out what was going on. This was seen as a non issue if accurate as who would not call to see what was going on. Brady giving gifts to staff and others is not an indication of his intimate knowledge of their duties and Brady could have literally hundreds of examples of him providing gear etc... to people whom he deals with only in passing and that Brady would have no reason to know the specifics of how the balls are prepared beyond his dealings with John Jastremski. They felt there was little chance any arbitrator would uphold any sanctions based on this claim as this claim is not supported by the evidence in the Wells report and the NFL is bound by the contents of the report (unless they cite another source in the punishment).
3) Perceived as uncooperative with investigation. They were most unclear on this as they were unfamiliar with the terms of the NFL collective bargaining agreement and if it required that a player was required to hand over personal property. They doubted that any union would allow any such agreement and that Brady was completely justified in not complying with their request especially when considering the NFL's repeated failure to uphold confidentiality. Additionally as Jastremski and McNally did hand over their phones, were there any texts/emails from Brady to them it would have been seen on these devices so seeking Brady's phone was fishing. Putting aside the issue of if the NFL will claim failing to hand over personal property is grounds for sanctions under the union rules, they felt that if accurate that Brady met with the investigators as stated and answered their questions, any sanctions claiming non cooperation would be tossed. Not admitting what did not happen is not being uncooperative.
So basically aside from the possibility that the union contract allows for confiscation of personal property, they saw no significant risk that any penalty against Brady would stick and that the NFL was regularly shredded in arbitration. There was actually talk that Goodell would lay down a penalty to appease the masses knowing that it would be removed by the arbitrator. This may have been a reason why the report focused on nailing Brady and not Belichick, Kraft or the Patriots in any meaningful way. Telling them to submit questions in writing instead of allowing a 5th interview with a staff member is not hardcore non cooperation. The Union may really enjoy this given Wells was the NFL's attorney in the concussion lawsuit. Watch the Front line special on it if you have not already http://www.pbs.org/wgbh/pages/frontline/league-of-denial/
As far as Brady's legal options, he could in fact sue, and seek discovery against all parties requesting all communications involving himself, the Patriots, etc... having to do with PSI and the investigation. He would also be subject to disclosure but if in fact there is nothing to hide, he could request all of Goodells emails, texts, chats etc... on the issue, all the reffs and NFL executives. They felt this was unlikely to happen but did point out that Brady's reputation has immense value and his income from non football activities is significant and potentially more than his football salary so it would not be unheard of for Brady to use his immense wealth to pursue this action if for no other reason than to force discovery in an attempt to clear his name and this would be most likely to occur in the unlikely event that Brady lost arbitration. Interesting situation for the NFL, if they win arbitration it dramatically increased the chance Brady goes after them and does discovery on all the NFL employees communications regarding him, the investigation and PSI. If I were Goodell I would be very afraid of this.
So basically go ahead and punish Brady to the max because it won't probably stand in arbitration and the NFL will set the Patriots up to destroy all others next year. In the very unlikely event that an arbitrator does not do this (hell ray Rice won arbitration and that was on film), it increases the likily of the immensely wealthy Tom Brady going after the NFL in a court of law. Although victory in the court may be difficult, the trial and extensive discovery could restore his reputation which is valued in excess of $100M. It was also though if Brady is suspended for the first game that instead of raising the championship banner the first night without Brady there, that a black banner or a pirate flag be raised instead after a minute of silence. The banner could be raised when Brady returned.
Very sleepy and head spinning but hopes this makes sense.
Effectively NFL constrained by Wells report if they use it as the basis of sanctions so they live or die by what is in there. At an arbitration hearing they will not be able to introduce new evidence and that effectively an arbitration is run like a trial. Brady can bring what ever evidence reports, witnesses he wants.
* Crappy morning update. Did not know that Goodell is the default arbitrator and was based on an assumption of a non biased independent arbitrator. (What a crappy union agreement) Goodel has Vincent giving the penalty because Goodall can't arbitrate a penalty he put in place. Goodell could claim he is unbiased, appoint himself, suspend Brady and Brady would miss games as this is fought.*
Perceived areas NFL could act and attempt to punish Brady
1) Perceived knowledge of tampering
2) Perceived lying - He also claimed he knew neither the identity nor role of Jim McNally, the officials’ locker room attendant.
3) Perceived as uncooperative with investigation
1) Perceived knowledge of tampering - “it is more probable than not” that Patriots locker room attendant Jim McNally and Patriots equipment assistant John Jastremski deliberately released air from footballs after the balls were examined by the referees. The report also concludes that “it is more probable than not” that Brady “was at least generally aware of the inappropriate activities of McNally and Jastremski”. The NFL can only use the Wells report in arbitration while Brady can get as many witnesses, reports etc.. as he wants. He can bring in MIT, Headsmart, anyone and as the NFL admits they don't know if in fact any tampering even took place, there is no chance they can punish Brady for this and have it stick. You can't punish Brady for an assumption he knew about something taking place which is only an assumption that it may have in fact taken place. They can punish the Patriots as they thought that the Patriots do not have the right to appeal but the Patriots legal position is 180 degrees different than that of a player. Patriots can be punished for having an employee take the balls with him on a pee stop but that has nothing to do with Brady.
2) Perceived lying - Brady reportedly claimed he knew neither the identity nor role of Jim McNally, the officials’ locker room attendant. Based on what Michael Holly stated, this statement from Brady was in reference to the October Jets game point in time where the PSI was set at 16 PSI and that Brady deals with John Jastremski primarily and it is John Jastremski who deals with McNally. Brady's statements that they if they needed to bring the rule book to the reffs is hardly an indication of attempting to tamper. Brady's calls after this broke were with John Jastremski to find out what was going on. This was seen as a non issue if accurate as who would not call to see what was going on. Brady giving gifts to staff and others is not an indication of his intimate knowledge of their duties and Brady could have literally hundreds of examples of him providing gear etc... to people whom he deals with only in passing and that Brady would have no reason to know the specifics of how the balls are prepared beyond his dealings with John Jastremski. They felt there was little chance any arbitrator would uphold any sanctions based on this claim as this claim is not supported by the evidence in the Wells report and the NFL is bound by the contents of the report (unless they cite another source in the punishment).
3) Perceived as uncooperative with investigation. They were most unclear on this as they were unfamiliar with the terms of the NFL collective bargaining agreement and if it required that a player was required to hand over personal property. They doubted that any union would allow any such agreement and that Brady was completely justified in not complying with their request especially when considering the NFL's repeated failure to uphold confidentiality. Additionally as Jastremski and McNally did hand over their phones, were there any texts/emails from Brady to them it would have been seen on these devices so seeking Brady's phone was fishing. Putting aside the issue of if the NFL will claim failing to hand over personal property is grounds for sanctions under the union rules, they felt that if accurate that Brady met with the investigators as stated and answered their questions, any sanctions claiming non cooperation would be tossed. Not admitting what did not happen is not being uncooperative.
So basically aside from the possibility that the union contract allows for confiscation of personal property, they saw no significant risk that any penalty against Brady would stick and that the NFL was regularly shredded in arbitration. There was actually talk that Goodell would lay down a penalty to appease the masses knowing that it would be removed by the arbitrator. This may have been a reason why the report focused on nailing Brady and not Belichick, Kraft or the Patriots in any meaningful way. Telling them to submit questions in writing instead of allowing a 5th interview with a staff member is not hardcore non cooperation. The Union may really enjoy this given Wells was the NFL's attorney in the concussion lawsuit. Watch the Front line special on it if you have not already http://www.pbs.org/wgbh/pages/frontline/league-of-denial/
As far as Brady's legal options, he could in fact sue, and seek discovery against all parties requesting all communications involving himself, the Patriots, etc... having to do with PSI and the investigation. He would also be subject to disclosure but if in fact there is nothing to hide, he could request all of Goodells emails, texts, chats etc... on the issue, all the reffs and NFL executives. They felt this was unlikely to happen but did point out that Brady's reputation has immense value and his income from non football activities is significant and potentially more than his football salary so it would not be unheard of for Brady to use his immense wealth to pursue this action if for no other reason than to force discovery in an attempt to clear his name and this would be most likely to occur in the unlikely event that Brady lost arbitration. Interesting situation for the NFL, if they win arbitration it dramatically increased the chance Brady goes after them and does discovery on all the NFL employees communications regarding him, the investigation and PSI. If I were Goodell I would be very afraid of this.
So basically go ahead and punish Brady to the max because it won't probably stand in arbitration and the NFL will set the Patriots up to destroy all others next year. In the very unlikely event that an arbitrator does not do this (hell ray Rice won arbitration and that was on film), it increases the likily of the immensely wealthy Tom Brady going after the NFL in a court of law. Although victory in the court may be difficult, the trial and extensive discovery could restore his reputation which is valued in excess of $100M. It was also though if Brady is suspended for the first game that instead of raising the championship banner the first night without Brady there, that a black banner or a pirate flag be raised instead after a minute of silence. The banner could be raised when Brady returned.
Very sleepy and head spinning but hopes this makes sense.
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