Tom's OTHER legal options, including going nuclear

[MassPats38]

All very nice, but just one thought for you about TIMING....

If the salient piece of defamation occurred in January (undenied leak of false psi numbers), and the ARBITRATION didn't START until at best when the wells report was finished, well then the DEFAMATION PREDATES ARBITRATION (at least to my way of thinking).

And that is significantly different than the Vilma case, because Vilma's damages all occurred as their wells report was being discussed -reviewed. Brady was damaged goods before wells even started.

The defamatory statements are about the handling of footballs, correct? Unless the timing predates the CBA (it does not), then it likely will be addressed under the CBA. If it is even allegedly part of some investigation, then the response will likely be part of the agreed upon procedures. The issue is whether Brady violated a NFL rule. If the subject matter falls within the range of issues governed by the CBA, then it is probably going to be addressed under an arbitration theory and not as a separate civil claim. Does the CBA say facts of investigations will not be leaked or disclosed? Does the CBA say Goody is legally obliged to correct erroneous facts? Doesn't the lousy Wells report, representing the official investigation of the NFL, provide accurate PSI measurements correcting erroneous unofficial reports?

Federal courts are not football fans looking to intervene at the drop of a hat. In a sense, this is like employment discrimination claims when a boss makes a racist or sexist statement yet neither fires nor demotes the target of the statement. Federal law does not address unfair or patently ridiculous behavior until a person is the recipient of the adverse action. It is not a mediator, nor does it care if your boss is generally a jerk. In this case, it appears Goody is a monster jerk, but he is also a party to a mutually bargained CBA. If Brady wanted to sue individually, then he should not have agreed to a CBA. Once that is done, federal courts will happily honor the agreement and refrain from action barring exceptional (consider it a super-appeal standard) circumstances.

If the NFL or Goody claimed Brady was having sexual relations with someone not his wife, knew the falsehood, and deliberately published the statement in order to screw with Brady, then Brady could go after him on a defamation claim because it is doubtful that was the sort of issue contemplated by the CBA. The issue here is not a false claim of infidelity, or homicide, or commission of some other heinous crime. The issue is a football declared to be under NFL rules standards and Brady's role in those findings, and whether he cooperated with an NFL investigation.

 

[MagicMarker]

Federal courts are not football fans looking to intervene at the drop of a hat.

Probably true...However judges are people to and some have been saying for several cases the NFL appeal process is fundamentally unfair, and would love to get a case to strike that down.

You're probably right, but this fits into the category of once you go to court, the result is unpredictable.

 

[MassPats38]

So, in layman's terms, you're saying that even though the actions surrounding the Mortensen leak chronologically preceded the Arbitration proceeding, a Federal Court would view those prior actions as being encompassed by the events of the Arbitration since "all substantive claims would be preempted by the CBA" in this instance?

Spelled out in a little more detail earlier, but I would expect that would be tied to the NFL investigation pursuant to the CBA. The reason that information was even mentioned was attributable to an ongoing NFL investigation.

The concern is directed to subject matter of issues generally rather than timing of events. More generally, is this something that falls within the bargained procedures (not simply the final stage of those procedures)? If it does, then federal courts will prefer not to scrutinize the problem.

At the core of this ridiculous debacle, you have a claimed violation of a NFL rule (and, as ridiculous as it may seem, little black and white guidance in the CBA on the handling of investigations). I expect it will be a real challenge to make this something other than a CBA issue.

 

[Fencer]

Spelled out in a little more detail earlier, but I would expect that would be tied to the NFL investigation pursuant to the CBA. The reason that information was even mentioned was attributable to an ongoing NFL investigation.

The concern is directed to subject matter of issues generally rather than timing of events. More generally, is this something that falls within the bargained procedures (not simply the final stage of those procedures)? If it does, then federal courts will prefer not to scrutinize the problem.

At the core of this ridiculous debacle, you have a claimed violation of a NFL rule (and, as ridiculous as it may seem, little black and white guidance in the CBA on the handling of investigations). I expect it will be a real challenge to make this something other than a CBA issue.

I'm sure there's some sort of a safe harbor along the lines "If a statement was a necessary consequence of the discipline process, then it's not defamatory unless labor law says so." However, that doesn't cover all statements. Please correct me if I'm wrong, but statements about players' health are governed by HIPAA except where the CBA trumps HIPAA, and there are plenty of circumstances where it doesn't. (If I'm wrong, it's because HIPAA-like privacy is explicitly written into the CBA, but I'm guessing that's not what's going on.)

Now, the NFL might claim that the order to the Pats not to divulge the true PSI was somehow a labor law matter. Certainly the Pats could claim that. But the original leak to Mortenson seems defamatory, period, although Mortenson himself is probably in the clear for reporting what he was told.

 

[patsfan13]

How is leaking false information, and never correcting the report covered in the CBA?

 

[Tony2046]

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.

Wouldn't it be nice if a defamation lawsuit could be won on its merits alone instead of all this trickery BS?

I do appreciate the OP's insight and thoughts on the matter.

 

[Joker]

Of course, there's been no damage to you, you, you, you, him, them and everyone who LIVES in New England and anyone who dares show they are fans of the New England Patriots anywhere in the U.S.. Nah, the federal courts would never look at kids getting their heads bashed in by punks and beaten for being "cheaters",a nd their fathers and mothers being constantly harrassed in thew workplace by employees that are fans of other teams. Constant daily assaults by people using the Roger Goodell talking points as reason to harass, denigrate and attempt to force away anyone associated with being a fan of the NEP.

Nah, that's not an important part of what Goodell has done here. It's strictly a very narrow , defined issue of CBA language. Any collateral damage is...well...for all intents and purposes..it just doesn't exist.

So how about the US citizens of New England that have suffered severe distress, pain and suffering at the hands of the howling mob, how about it if THEY drop a ONE HUNDRED BILLION DOLLAR lawsuit alleging pain and suffering, and naming every cretin with a hand in this preposterous "Deflategate" calumny? Our federal government's court system isn't there to hear the pleas for justice from its' citizens?

Really? Did I miss something the past few years? When did it become law that some shill for a bunch of billionaires can just run amok, tearing all our lives to shreds, reducing us to pariahs in our country,threaten the health and welfare of OUR children by exposing them to wholesale mental and physical violence and effectively telling all of us to eat shyt, STFU and keep our mouths shut?

I want this scumbag to tell ME, face to face, that I'm a moron, the Ideal Gas Law doesn't exist, screw me, my kids and my family and he'll do whatever he goddamned well pleases. In fact ,I'm going to write NFL offices every day beseeching Goodell to make a public appearance before US, the New England Patriots fanbase and answer OUR questions vis a vis his established "Protect The Shield" meme. Who the hell is protecting OUR shield from this ******ed rhinoceroid?

 

[Gumby]

Of course, there's been no damage to you, you, you, you, him, them and everyone who LIVES in New England and anyone who dares show they are fans of the New England Patriots anywhere in the U.S.. Nah, the federal courts would never look at kids getting their heads bashed in by punks and beaten for being "cheaters",a nd their fathers and mothers being constantly harrassed in thew workplace by employees that are fans of other teams. Constant daily assaults by people using the Roger Goodell talking points as reason to harass, denigrate and attempt to force away anyone associated with being a fan of the NEP.

Nah, that's not an important part of what Goodell has done here. It's strictly a very narrow , defined issue of CBA language. Any collateral damage is...well...for all intents and purposes..it just doesn't exist.

So how about the US citizens of New England that have suffered severe distress, pain and suffering at the hands of the howling mob, how about it if THEY drop a ONE HUNDRED BILLION DOLLAR lawsuit alleging pain and suffering, and naming every cretin with a hand in this preposterous "Deflategate" calumny? Our federal government's court system isn't there to hear the pleas for justice from its' citizens?

Really? Did I miss something the past few years? When did it become law that some shill for a bunch of billionaires can just run amok, tearing all our lives to shreds, reducing us to pariahs in our country,threaten the health and welfare of OUR children by exposing them to wholesale mental and physical violence and effectively telling all of us to eat shyt, STFU and keep our mouths shut?

I want this scumbag to tell ME, face to face, that I'm a moron, the Ideal Gas Law doesn't exist, screw me, my kids and my family and he'll do whatever he goddamned well pleases. In fact ,I'm going to write NFL offices every day beseeching Goodell to make a public appearance before US, the New England Patriots fanbase and answer OUR questions vis a vis his established "Protect The Shield" meme. Who the hell is protecting OUR shield from this ******ed rhinoceroid?

Well, I second your vote for a CLASS ACTION LAWSUIT.

if Daft, can't be bothered to stand up for the team, somebody's gotta do it. Might as well be us.

 

[MassPats38]

I'm sure there's some sort of a safe harbor along the lines "If a statement was a necessary consequence of the discipline process, then it's not defamatory unless labor law says so." However, that doesn't cover all statements. Please correct me if I'm wrong, but statements about players' health are governed by HIPAA except where the CBA trumps HIPAA, and there are plenty of circumstances where it doesn't. (If I'm wrong, it's because HIPAA-like privacy is explicitly written into the CBA, but I'm guessing that's not what's going on.)

Now, the NFL might claim that the order to the Pats not to divulge the true PSI was somehow a labor law matter. Certainly the Pats could claim that. But the original leak to Mortenson seems defamatory, period, although Mortenson himself is probably in the clear for reporting what he was told.

Don't get me wrong here, Fencer. I would love to see Goody and the NFL get flogged for this. The leaked report (if it was actually a leak by the NFL and not the fault of Mortensen (factual inaccuracy as to the information or source) - I am playing lawyer here, not saying I believe it was not leaked by the NFL) was of PSI information. Not that Brady cheated. The 'accurate' PSI information was ultimately published in an official NFL report.

Much of this process has been underhanded, but that is really what we know and investigations often entail the inadvertent disclosure of inaccurate and/or erroneous information (police and federal agents have "perp walked" innocent people yet never clarified or corrected the initial public statements indicating involvement in criminal activity). A broad reading may be "it happens." No harm, no foul and you had a hearing and appeal to correct any inaccurate information. This is envisioned by the CBA process. That may be the way a court reasons that issue.

HIPAA is a different animal because it establishes enterprise liability and I do not believe agreements can/could override enterprise liability standards for disclosure in the absence of a formal waiver/release. That would be somewhat different than general tort claims. I do not believe any organization is empowered to relax disclosure standards (I deal with HIPAA, but I do not profess comprehensive knowledge of it in its entirety). CBAs can limit rights to bring civil claims.

I don't remember what Mortensen claimed as his source (frankly I got tired of that story quickly). Much like the Tomase piece that angered us all before the Super Bowl, we are left to guess what happened because the media will not disclose its source (even if held in contempt for refusal to do so on court order) and I am not aware of specifics beyond that. The reality of the claim, without knowing the source, is it would be difficult to draft a defamation claim "on information and belief" as to a declarant possessing the actual or apparent authority of the NFL. We 'know' what happened, but courts still demand an adequate factual basis before we can file that claim in court. One more reason I believe Goody is slime, because I expect he was aware of that eventuality when this 'information' was released.

In the end, you have two groups with deep pockets who have retained very capable attorneys. The NFLPA is excited about this case because it will potentially define procedures and limit what Goody can do in the future in disciplining players with a court interpretation in hand. I hope these very smart attorneys billing absurd hourly rates can find ways to make this as ugly as possible. In the end, I expect even under the ugliest scenario for the NFL Brady will not be exonerated, but rather will be freed of discipline due to lack of evidence.

In my opinion, the most sweeping and useful claims for exposing this mess would have come from Kraft in the Al Davis-style action. Win or lose, that would have seemed to permit the anti-trust action with all of this debacle coming in as evidence. Brady's rights as an individual are not nearly as broad as the ownership interests. Some day, I would really like to hear what Kraft stood to gain with his decision to forego legal action.

 

[MagicMarker]

Ignoring the defamation suit and getting back to the labor suit. Did you ever think that other teams (and their fans) think the Patriots have abused the rules and deserve to be punished. Similarly, I've thought Judge Doty (even though he's 86 and semi-retired, he still hears cases) believes the NFL has been abusing the rules of the CBA and deserves to be punished. So, even though any labor case should only come down to procedures, he might look beyond that.

 

[Fencer]

Don't get me wrong here, Fencer. I would love to see Goody and the NFL get flogged for this. The leaked report (if it was actually a leak by the NFL and not the fault of Mortensen (factual inaccuracy as to the information or source) - I am playing lawyer here, not saying I believe it was not leaked by the NFL) was of PSI information. Not that Brady cheated. The 'accurate' PSI information was ultimately published in an official NFL report.

Much of this process has been underhanded, but that is really what we know and investigations often entail the inadvertent disclosure of inaccurate and/or erroneous information (police and federal agents have "perp walked" innocent people yet never clarified or corrected the initial public statements indicating involvement in criminal activity). A broad reading may be "it happens." No harm, no foul and you had a hearing and appeal to correct any inaccurate information. This is envisioned by the CBA process. That may be the way a court reasons that issue.

HIPAA is a different animal because it establishes enterprise liability and I do not believe agreements can/could override enterprise liability standards for disclosure in the absence of a formal waiver/release. That would be somewhat different than general tort claims. I do not believe any organization is empowered to relax disclosure standards (I deal with HIPAA, but I do not profess comprehensive knowledge of it in its entirety). CBAs can limit rights to bring civil claims.

I don't remember what Mortensen claimed as his source (frankly I got tired of that story quickly). Much like the Tomase piece that angered us all before the Super Bowl, we are left to guess what happened because the media will not disclose its source (even if held in contempt for refusal to do so on court order) and I am not aware of specifics beyond that. The reality of the claim, without knowing the source, is it would be difficult to draft a defamation claim "on information and belief" as to a declarant possessing the actual or apparent authority of the NFL. We 'know' what happened, but courts still demand an adequate factual basis before we can file that claim in court. One more reason I believe Goody is slime, because I expect he was aware of that eventuality when this 'information' was released.

In the end, you have two groups with deep pockets who have retained very capable attorneys. The NFLPA is excited about this case because it will potentially define procedures and limit what Goody can do in the future in disciplining players with a court interpretation in hand. I hope these very smart attorneys billing absurd hourly rates can find ways to make this as ugly as possible. In the end, I expect even under the ugliest scenario for the NFL Brady will not be exonerated, but rather will be freed of discipline due to lack of evidence.

In my opinion, the most sweeping and useful claims for exposing this mess would have come from Kraft in the Al Davis-style action. Win or lose, that would have seemed to permit the anti-trust action with all of this debacle coming in as evidence. Brady's rights as an individual are not nearly as broad as the ownership interests. Some day, I would really like to hear what Kraft stood to gain with his decision to forego legal action.

So what you're saying is that it's very hard to prove defamation for a falsehood that was eventually (before any lawsuit or whatever) corrected, (especially?) if the falsehood was in the context of an investigation?

And you're punting on the question of nailing somebody for defamation when it occurs in the press based on a confidential source?

Somehow, I don't see Mortensen as the type to go to jail to protect a source who in fact gave him incorrect information. But that's separate from saying a judge would ever order him to disclose the source; on that question I have no strong opinion.

 

[TheBostonStraggler]

I'd love to see Brady win a defamation lawsuit against the NFL. I'd love it, love it, love it. Unfortunately this is a very unlikely scenario regardless of how much it is deserved. With public figure defamation already a high hurdle and with Goodell's insulation due to his Commissioner/agreement status, there would have to be some outlandish, almost surreal, communications going on between NFL personnel to allow a legal proceeding to overcome the public figure-workplace barriers.

I believe Brady has 2 things to go after legally: procedural and abuse of discretion (just my guess).
Procedural is, IMHO, very likely. (1) Did Goodell conduct everything according to the procedures? (2) Did Goodell hand out or condone punishment that is allowed under the procedures? (3) Does Goodell have history of procedural abuse? On 1, it may or may not be the case/provable. On 2, I think a judge would really have to twist and contort to say the commissioner has this kind of arbitrary power to hand out a 4 game punishment regardless of how egregious it is outside the norm (see: Viking's ball heating game, See Favre off field ball heating texts and not turning over phone). On 3, forgetaboutit. Goodell is an established procedural scofflaw. Ultimately I doubt anyone would be surprised if a judge throws out the suspension in large part or altogether.
But procedure will do nothing for guilt or innocence. While we could get lucky and have the judge's ruling include comments that castigate Goodell and his office for their unethical operation/finding of guilt, it will not be a legal proclamation.
Abuse of discretion is Brady's best shot for vindication. The hurdle will be high due to, again, Goodell having a lot of procedural power to decide things too close to capricious and arbitrary. Yet there is no doubt this thing reeks pretty bad. And if it reeks there is almost certainly abuse of discretion going on. But abuse of discretion and Abuse Of Discretion are different. The good news is Brady doesn;t have to prove Abuse of Discretion, he just needs to provide sufficient Abuse of Discretion possibility to, maybe, get 'guilt or innocence' question out of the NFL's(and ESPN) hands. IMHO just to get to that point is a semi-win; it will make Goodell and his lops start to sweat, start fretting over the ramifications of the precedent of a court now deciding a player is guilty or not, start to have serious ownership pressure put on him, and likely set the hole(sic) thing in motion to fall apart.

 

[PatsFanSince74]

Spelled out in a little more detail earlier, but I would expect that would be tied to the NFL investigation pursuant to the CBA. The reason that information was even mentioned was attributable to an ongoing NFL investigation.

The concern is directed to subject matter of issues generally rather than timing of events. More generally, is this something that falls within the bargained procedures (not simply the final stage of those procedures)? If it does, then federal courts will prefer not to scrutinize the problem.

At the core of this ridiculous debacle, you have a claimed violation of a NFL rule (and, as ridiculous as it may seem, little black and white guidance in the CBA on the handling of investigations). I expect it will be a real challenge to make this something other than a CBA issue.

Thanks for this and all your contributions on the subject. I've highlighted your words that really clarified the matter for me.

 

[PatsFanSince74]

Don't get me wrong here, Fencer. I would love to see Goody and the NFL get flogged for this. ...
Much of this process has been underhanded, but that is really what we know and investigations often entail the inadvertent disclosure of inaccurate and/or erroneous information (police and federal agents have "perp walked" innocent people yet never clarified or corrected the initial public statements indicating involvement in criminal activity). A broad reading may be "it happens." No harm, no foul and you had a hearing and appeal to correct any inaccurate information. This is envisioned by the CBA process. That may be the way a court reasons that issue.

...

I don't remember what Mortensen claimed as his source (frankly I got tired of that story quickly). Much like the Tomase piece that angered us all before the Super Bowl, we are left to guess what happened because the media will not disclose its source (even if held in contempt for refusal to do so on court order) and I am not aware of specifics beyond that. The reality of the claim, without knowing the source, is it would be difficult to draft a defamation claim "on information and belief" as to a declarant possessing the actual or apparent authority of the NFL. We 'know' what happened, but courts still demand an adequate factual basis before we can file that claim in court. One more reason I believe Goody is slime, because I expect he was aware of that eventuality when this 'information' was released.

In the end, you have two groups with deep pockets who have retained very capable attorneys. The NFLPA is excited about this case because it will potentially define procedures and limit what Goody can do in the future in disciplining players with a court interpretation in hand. I hope these very smart attorneys billing absurd hourly rates can find ways to make this as ugly as possible. In the end, I expect even under the ugliest scenario for the NFL Brady will not be exonerated, but rather will be freed of discipline due to lack of evidence.

In my opinion, the most sweeping and useful claims for exposing this mess would have come from Kraft in the Al Davis-style action. Win or lose, that would have seemed to permit the anti-trust action with all of this debacle coming in as evidence. Brady's rights as an individual are not nearly as broad as the ownership interests. Some day, I would really like to hear what Kraft stood to gain with his decision to forego legal action.

Thanks again and, BTW, no need to explain where your loyalties lie...they are very clearly to the Patriots. You're just presenting an informed view of the circumstances around a particular type of lawsuit that is "hoped for" by many, but almost certainly not in the cards.

Again, I've highlighted your comments that caught my attention and clarified things for me.

I think your comments and ultimate conclusion regarding Kraft's decision were particularly helpful. My own personal view, formed while watching his announcement in San Francisco and listening to the tone of his remarks, is that he is an elderly gentleman, who has done many remarkable things in his life, who was probably traumatized in ways about which he is likely in severe denial by the death of his life partner and who was primarily focused on assuring his "good standing" in the Owners Club that, on some level, he now views as his primary family. I don't know much about Jonathan Kraft, but I think it's time that Robert be gently nudged aside.

Thanks.

 

[Sicilian]

Wouldn't coming out before a trial and stating that you're going to donate your winnings to charity be seen as some kind of jury tampering? I can't imagine courts like someone influencing a jury with something other than the facts of the claim. Is there a legal reason this would be allowed that I'm not aware of?

 

[RunAmok]

While I would love to see TB rip into the NFL front office like the Tasmanian Devil, I am not sure that the leak to Mort would be considered defaming TB. Inaccurate PSI numbers do not equate to stating that Tom Brady was caught with a pin in hand deflating footballs.

Now the press ran wild with the leak and created all kinds of wild accusations but it would be hard to prove that the NFL deliberately went after Brady's reputation.

 

[Palm Beach Pats Fan]

. Inaccurate PSI numbers do not equate to stating that Tom Brady was caught with a pin in hand deflating footballs.

Stating that there was an average pressure drop of more than 2 psi does equate to stating that somebody took some air out of the footballs, and (by their logic), it would not have been done without Tom's consent. Keep in mind, he isn't being punished for deflating footballs, but for "general awareness".

Stating the TRUTH, that there was an average pressure drop of about 1 psi (trusting the ref's memory as to which gauge was used), does equate to stating that nobody took any air out of those footballs. The truth would have been instantly exonerating.

Thus the "11 of 12" fallacy, attributed by Mortensen to an NFL source involved in the investigation, did spark the entire controversy and caused irreparable damage to Tom Brady. The liar would have reasonably expected it to do just that.

The trouble would be in identifying the liar without the cooperation of Mortensen.

 

[PatsFanSince74]

Stating that there was an average pressure drop of more than 2 psi does equate to stating that somebody took some air out of the footballs, and (by their logic), it would not have been done without Tom's consent. Keep in mind, he isn't being punished for deflating footballs, but for "general awareness".

Stating the TRUTH, that there was an average pressure drop of about 1 psi (trusting the ref's memory as to which gauge was used), does equate to stating that nobody took any air out of those footballs. The truth would have been instantly exonerating.

Thus the "11 of 12" fallacy, attributed by Mortensen to an NFL source involved in the investigation, did spark the entire controversy and caused irreparable damage to Tom Brady. The liar would have reasonably expected it to do just that.

The trouble would be in identifying the liar without the cooperation of Mortensen.

I think most of us are in agreement that the leak to Mortensen stunk to high heaven.

But, even if someone manages to identify the person who leaked the information in the first place, the legal defenses against the charge that the leak was perpetrated with malicious intent to defame are numerous, starting with an obvious lie that would probably stand up in court against a "Defamation" suit: "It turns out that I was misinformed and made a mistake in the information I gave to Mr. Mortensen, but I thought it best to allow the League's investigation to clear things up. Unfortunately, I had no control over how Mr. Mortensen used the information, but I'm sorry that I erred in giving it to him." (You may now barf, but it's along the lines of what the leaker would likely say, if identified.)

What the leaker might or might not have "reasonably expected" might be clear to you and me, but it is purely speculative in the eyes of the law when a high profile individual is involved.

 

[Deus Irae]

Don't get me wrong here, Fencer. I would love to see Goody and the NFL get flogged for this. The leaked report (if it was actually a leak by the NFL and not the fault of Mortensen (factual inaccuracy as to the information or source) - I am playing lawyer here, not saying I believe it was not leaked by the NFL) was of PSI information. Not that Brady cheated. The 'accurate' PSI information was ultimately published in an official NFL report.

Much of this process has been underhanded, but that is really what we know and investigations often entail the inadvertent disclosure of inaccurate and/or erroneous information (police and federal agents have "perp walked" innocent people yet never clarified or corrected the initial public statements indicating involvement in criminal activity). A broad reading may be "it happens." No harm, no foul and you had a hearing and appeal to correct any inaccurate information. This is envisioned by the CBA process. That may be the way a court reasons that issue.

I'm not sure where you're trying to go with this. The leaked report would be evidence of malice. It goes to legal requirements/sufficiency of case questions, not the cause for the suit.

 

[patsfan13]

I think most of us are in agreement that the leak to Mortensen stunk to high heaven.

But, even if someone manages to identify the person who leaked the information in the first place, the legal defenses against the charge that the leak was perpetrated with malicious intent to defame are numerous, starting with an obvious lie that would probably stand up in court against a "Defamation" suit: "It turns out that I was misinformed and made a mistake in the information I gave to Mr. Mortensen, but I thought it best to allow the League's investigation to clear things up. Unfortunately, I had no control over how Mr. Mortensen used the information, but I'm sorry that I erred in giving it to him." (You may now barf, but it's along the lines of what the leaker would likely say, if identified.)

What the leaker might or might not have "reasonably expected" might be clear to you and me, but it is purely speculative in the eyes of the law when a high profile individual is involved.

But the league knew the report by Mortenson was false, yet the neither publicly denied the figures, they also lied directly to the Patriots about the air pressure of their balls as well as the Colts balls.