- Joined
- Apr 27, 2009
- Messages
- 1,043
- Reaction score
- 2,486
While Tom and his lawyers prepare to file suit to overturn his coming suspension, let’s take a look at his two other legal options, including going nuclear on the NFL.
Ever since 1964, in New York Times vs. Sullivan, it’s been legal gospel that a public figure cannot successfully sue for libel or defamation; the standard of having to prove actual malice is considered too difficult to overcome. So despite what you may have read, whether he is exonerated or not, Tom would have zero chance of prevailing in a defamation lawsuit against either Ted Wells or the NFL thugs on Park Avenue. A defamation lawsuit is a legal non-starter, a complete waste of time and money. It will never succeed, not in a million years. Unless….
Unless the NFL did something so colossally evil, mind-boggling stupid and, well, malicious such as leaking to Chris Mortensen a blatantly false report that 11 of the 12 footballs were 2 pounds under the 12.5 minimum of football pressure. Not only was the report completely false, it was done with the malicious intent of destroying Tom Brady’s character and good name. And it succeeded, probably beyond the NFL’s wildest dreams. The fact that the NFL didn’t contradict the numbers until the Wells Report months later is icing on the cake. This is a textbook case of actual malice. Tom went from being one of the most admired people in sports to being one of the most despised. No matter what happens going forward, he’ll always be considered a cheater.
That, fellow Pats fans, is your defamation lawsuit. It wouldn’t be a 100 page Complaint with multiple counts. It would be ten pages or less with one count against the NFL only. The key to winning a defamation lawsuit is prevailing against a Motion for Summary Judgment and getting to a jury. You have to convince the trial court judge that there are one or more material issues of fact for a jury to decide. This is the way to do it. I’m not a First Amendment lawyer (although I’ve litigated a defamation case before) and even I could write the complaint in a couple of hours. I would ask for a minimum of a hundred million dollars. That’s an absurd amount for mere mortals but quite reasonable for someone with the earning potential of 30 million per year.
Over a few adult beverages, a couple of lawyers and I spit-balled how we would handle this case and here’s what we came up with. Once the suit is filed, we’d have Tom hold a short press conference on the steps of the Federal District Court of Massachusetts and say, “Look, I’m rich already, I’m filing this lawsuit out of principle and I won’t accept a penny of it when I win. I’ve come up with a list of charities that will receive 50% of the proceeds, but I want your help in deciding which charities will receive the other 50%.” We would then set up a mechanism on social media where the good people of Massachusetts and others could nominate and vote for their favorite charities. The process of nominating worthy charities, culling the list and voting on the finalists would take weeks, if not months. The papers would talk about it, the radio stations would argue about which charities would get what, Twitter would weigh in and it would dominate the old and new media.
The beauty of this is that it would change and harden the narrative from “if Tom gets a verdict” to “when Tom gets a hundred million, all these charities are going to get a wonderful gift.” Naturally, the final list of charities getting a percentage of a future verdict would cut across every ethnic, social and geographic line. Every potential juror would have at least one charity near and dear to their heart that would stand to get a huge amount of money when a verdict is handed down.
Discovery would be a joy. We’d tell the NFL attorneys that Roger Goodell’s deposition would take at least 2 weeks but probably more like a month. We would go through every phone record, every email, and every document produced by the NFL. By the time we were done with them, the NFL would be begging to settle.
Now, fast forward to the trial date and jury selection. Voir dire is beginning and the NFL lawyers are trying to pick a jury that would be sympathetic to their cause. Naturally, a Massachusetts jury would be somewhat sympathetic to Tom but there would still be plenty of people who don’t like Plaintiffs or litigation, who don’t like Tom or the Pats, who don’t want to see anyone unjustly enriched, or God forbid are Jets fans. The beauty of this scenario is that they’ll all be on Tom’s side. Knowing that Tom won’t be getting a penny of any verdict and that it’s all going to charity will help immensely. Moreover, nobody likes Roger Goodell or the smug billionaires who own the NFL teams and spending their millions to support the worthy charities of New England will be fine with everyone, even the Brady haters and the Jets fans. Our jury consultants will be giddy with the prospective jurors while theirs will be frantically trying to find someone, anyone, to pick who won’t kill them. Good luck with that.
Tom could have his choice of the best trial attorneys to represent him. They would beg for this once in a lifetime opportunity. Come to think of it, 100 million is not nearly enough. Maybe we should add another zero.
That’s one option and it’s a winner. Here’s the nuclear one that I haven’t heard anyone mention. I’d go RICO on their asses. Yes, you heard me right, I’d file a civil suit under the Racketeer Influenced and Corrupt Organizations Act. Now, while the defamation lawsuit would practically write itself, stitching together a RICO complaint would take a lot of duct tape and bailing wire. The 2 required acts of racketeering activity within 10 years could be the 2 Wells Reports (the Saints and the Pats), based on the underlying fraud of using them not as independent investigations but as hit jobs to justify illegal suspensions. The law provides for treble damages. The defendants could include Roger Goodell, the 32 teams who employ him, and their owners, Ted Wells and all the equity partners in his law firm, and the main thugs in the NFL offices as well as the NFL.
While the defamation lawsuit would definitely make it to a jury and is a winner, a RICO lawsuit would be the longest of long shots. But who cares? Just the fact that the NFL was being sued under the same statute used to bring down the Mafia and drug cartels would cause the internet to explode. It would be epic.
Ever since 1964, in New York Times vs. Sullivan, it’s been legal gospel that a public figure cannot successfully sue for libel or defamation; the standard of having to prove actual malice is considered too difficult to overcome. So despite what you may have read, whether he is exonerated or not, Tom would have zero chance of prevailing in a defamation lawsuit against either Ted Wells or the NFL thugs on Park Avenue. A defamation lawsuit is a legal non-starter, a complete waste of time and money. It will never succeed, not in a million years. Unless….
Unless the NFL did something so colossally evil, mind-boggling stupid and, well, malicious such as leaking to Chris Mortensen a blatantly false report that 11 of the 12 footballs were 2 pounds under the 12.5 minimum of football pressure. Not only was the report completely false, it was done with the malicious intent of destroying Tom Brady’s character and good name. And it succeeded, probably beyond the NFL’s wildest dreams. The fact that the NFL didn’t contradict the numbers until the Wells Report months later is icing on the cake. This is a textbook case of actual malice. Tom went from being one of the most admired people in sports to being one of the most despised. No matter what happens going forward, he’ll always be considered a cheater.
That, fellow Pats fans, is your defamation lawsuit. It wouldn’t be a 100 page Complaint with multiple counts. It would be ten pages or less with one count against the NFL only. The key to winning a defamation lawsuit is prevailing against a Motion for Summary Judgment and getting to a jury. You have to convince the trial court judge that there are one or more material issues of fact for a jury to decide. This is the way to do it. I’m not a First Amendment lawyer (although I’ve litigated a defamation case before) and even I could write the complaint in a couple of hours. I would ask for a minimum of a hundred million dollars. That’s an absurd amount for mere mortals but quite reasonable for someone with the earning potential of 30 million per year.
Over a few adult beverages, a couple of lawyers and I spit-balled how we would handle this case and here’s what we came up with. Once the suit is filed, we’d have Tom hold a short press conference on the steps of the Federal District Court of Massachusetts and say, “Look, I’m rich already, I’m filing this lawsuit out of principle and I won’t accept a penny of it when I win. I’ve come up with a list of charities that will receive 50% of the proceeds, but I want your help in deciding which charities will receive the other 50%.” We would then set up a mechanism on social media where the good people of Massachusetts and others could nominate and vote for their favorite charities. The process of nominating worthy charities, culling the list and voting on the finalists would take weeks, if not months. The papers would talk about it, the radio stations would argue about which charities would get what, Twitter would weigh in and it would dominate the old and new media.
The beauty of this is that it would change and harden the narrative from “if Tom gets a verdict” to “when Tom gets a hundred million, all these charities are going to get a wonderful gift.” Naturally, the final list of charities getting a percentage of a future verdict would cut across every ethnic, social and geographic line. Every potential juror would have at least one charity near and dear to their heart that would stand to get a huge amount of money when a verdict is handed down.
Discovery would be a joy. We’d tell the NFL attorneys that Roger Goodell’s deposition would take at least 2 weeks but probably more like a month. We would go through every phone record, every email, and every document produced by the NFL. By the time we were done with them, the NFL would be begging to settle.
Now, fast forward to the trial date and jury selection. Voir dire is beginning and the NFL lawyers are trying to pick a jury that would be sympathetic to their cause. Naturally, a Massachusetts jury would be somewhat sympathetic to Tom but there would still be plenty of people who don’t like Plaintiffs or litigation, who don’t like Tom or the Pats, who don’t want to see anyone unjustly enriched, or God forbid are Jets fans. The beauty of this scenario is that they’ll all be on Tom’s side. Knowing that Tom won’t be getting a penny of any verdict and that it’s all going to charity will help immensely. Moreover, nobody likes Roger Goodell or the smug billionaires who own the NFL teams and spending their millions to support the worthy charities of New England will be fine with everyone, even the Brady haters and the Jets fans. Our jury consultants will be giddy with the prospective jurors while theirs will be frantically trying to find someone, anyone, to pick who won’t kill them. Good luck with that.
Tom could have his choice of the best trial attorneys to represent him. They would beg for this once in a lifetime opportunity. Come to think of it, 100 million is not nearly enough. Maybe we should add another zero.
That’s one option and it’s a winner. Here’s the nuclear one that I haven’t heard anyone mention. I’d go RICO on their asses. Yes, you heard me right, I’d file a civil suit under the Racketeer Influenced and Corrupt Organizations Act. Now, while the defamation lawsuit would practically write itself, stitching together a RICO complaint would take a lot of duct tape and bailing wire. The 2 required acts of racketeering activity within 10 years could be the 2 Wells Reports (the Saints and the Pats), based on the underlying fraud of using them not as independent investigations but as hit jobs to justify illegal suspensions. The law provides for treble damages. The defendants could include Roger Goodell, the 32 teams who employ him, and their owners, Ted Wells and all the equity partners in his law firm, and the main thugs in the NFL offices as well as the NFL.
While the defamation lawsuit would definitely make it to a jury and is a winner, a RICO lawsuit would be the longest of long shots. But who cares? Just the fact that the NFL was being sued under the same statute used to bring down the Mafia and drug cartels would cause the internet to explode. It would be epic.
Love that.
