SI's McCann on the report and Brady's options

[QuantumMechanic]

SI's Michael McCann ("a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law") gives his take.

Some snippets...

He points out that the "generally aware" is kinda lame:

First, the report employs the burden of persuasion found in civil trials: “more likely than not” or preponderance of evidence. This was to be expected, as there is no requirement that Wells adopt the “beyond a reasonable doubt” burden found in criminal trials. Internal investigations also normally use the preponderance of evidence burden or a burden akin to it. Still, Brady is now the subject of widespread criticism. One might wonder if the report had instead used a higher burden of proof, such as “clear and convincing,” whether the report’s portrayal of Brady would be very different.

Second, the report asserts that Brady was “at least generally aware” of wrongdoing committed by others. This “at least generally aware” test seems awfully inviting of blame. What exactly is “general awareness?” The report never defines it but presumably it could include very low levels of knowledge by Brady.

He points out that Wells wasn't really independent:

the NFL hired Wells and his firm, thus limiting the “independent” quality of the report. When a business hires a law firm, an attorney-client relationship that requires the firm to advocate for the client. Wells also has a longstanding relationship with the NFL, having authored the 2014 probe into the Miami Dolphins and bullying. Is it a surprise, Brady might cynically ask, that Wells is directing blame onto a player—and the player who happened to be the first named plaintiff in the 2011 antitrust lawsuit brought by NFL players against the NFL—rather than onto an owner or coach?

He thinks Brady won't get suspended for more than a game:

Given that the Patriots’ apparent violation of the PSI rule only carries a $25,000 fine and given that Brady himself is not accused of breaking the rule, it seems unlikely that Brady would face an expensive fine or a suspension of more than one game. He would also have the ability to appeal any suspension.

http://www.si.com/nfl/2015/05/06/nfl-deflategate-wells-report-legal-analysis

 

[Huckleberry1]

SI's Michael McCann ("a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law") gives his take.

Some snippets...

He points out that the "generally aware" is kinda lame:


He points out that Wells wasn't really independent:


He thinks Brady won't get suspended for more than a game:


http://www.si.com/nfl/2015/05/06/nfl-deflategate-wells-report-legal-analysis

In case you missed out earlier RL you were right all along and I could not have been any more wrong. Good call, you Pretty much nailed out, as did flasox. Wells was Gödel's pony in this dog and pony show.

 

[IllegalContact]

there may be a suspension, but the NFLPA will have a field day with it.......brady will never miss a game

 

[QuantumMechanic]

In case you missed out earlier RL you were right all along and I could not have been any more wrong. Good call, you Pretty much nailed out, as did flasox. Wells was Gödel's pony in this dog and pony show.

Thanks, but I wish I was wrong!

 

[Deus Irae]

I think McCann wasted his time on the defamation possibility, and he seemed to acknowledge that it would be nothing more than a PR tactic, but he's pretty well got it down.

 

[Huckleberry1]

Thanks, but I wish I was wrong!

I wish I had been right. You recognized from the get go that it wasn't going to be an independent investigation whereas I didn't think a guy of Wells stature would prostitute himself for the NFL league office. Completely naive on my part. I won't make that mistake again.

 

[YOUGOTMOSSED]

I wish I had been right. You recognized from the get go that it wasn't going to be an independent investigation whereas I didn't think a guy of Wells stature would prostitute himself for the NFL league office. Completely naive on my part. I won't make that mistake again.

Yeah, a belief that an attorney (ESPECIALLY A NY ATTORNEY) wouldn't prostitute himself is a little on the naive side.

 

[QuantumMechanic]

Yeah, a belief that an attorney (ESPECIALLY A NY ATTORNEY) wouldn't prostitute himself is a little on the naive side.

Well, to be slightly charitable to Wells, McCann does point out that "When a business hires a law firm, an attorney-client relationship requires the firm to advocate for the client."

I exchanged a bunch of tweets with McCann weeks ago about how truthful Wells would have to be. McCann basically said that while Wells couldn't lie he was mostly free to whitewash and spin to make his client look good and accomplish the client's goals and in fact basically had to do that if it was needed to advocate for the client.

And you know, that essentially is a lawyer's job and I doubt many people here who ever have to hire a lawyer would want one who wouldn't do that.

I think the problem is more the NFL than Wells (not that he's off the hook). They could have arranged things so that the NFL wasn't the client (maybe have the formal client be some committee of owners, or have the NFL waive "zealous representation", or something) and they could have hired someone who hasn't gotten past NFL business and doesn't expect to get future NFL business. And NFL VP Jeff Pash (or any other NFL employee, let alone executive) should have had no part whatsoever in the investigation.

 

[dikembe]

http://www.patsfans.com/new-england...n-original-dikembe-story-please-read.1119605/
PLEASE READ

 

[Deus Irae]

Well, to be slightly charitable to Wells, McCann does point out that "When a business hires a law firm, an attorney-client relationship requires the firm to advocate for the client."

I exchanged a bunch of tweets with McCann weeks ago about how truthful Wells would have to be. McCann basically said that while Wells couldn't lie he was mostly free to whitewash and spin to make his client look good and accomplish the client's goals and in fact basically had to do that if it was needed to advocate for the client.

And you know, that essentially is a lawyer's job and I doubt many people here who ever have to hire a lawyer would want one who wouldn't do that.

I think the problem is more the NFL than Wells (not that he's off the hook). They could have arranged things so that the NFL wasn't the client (maybe have the formal client be some committee of owners, or have the NFL waive "zealous representation", or something) and they could have hired someone who hasn't gotten past NFL business and doesn't expect to get future NFL business. And NFL VP Jeff Pash (or any other NFL employee, let alone executive) should have had no part whatsoever in the investigation.

They really need to have the owners and NFLPA come up with a list of investigators deemed acceptable to both, because of crossover situations likes this one, where both players and teams are under suspicion. Then, when a situation arises, a random selection method would choose which particular investigator got the gig.

But Goodell.

 

[QuantumMechanic]

They really need to have the owners and NFLPA come up with a list of investigators deemed acceptable to both, because of crossover situations likes this one, where both players and teams are under suspicion. Then, when a situation arises, a random selection method would choose which particular investigator got the gig.

That is a most excellent idea! Which of course means it would never happen in today's NFL.

 

[Danger Zone]

That is a most excellent idea! Which of course means it would never happen in today's NFL.

I actually like the idea of the accused/investigated to be allowed a chance of an active defense and ability to present a defense, similar to a mock trial with the Commissioner or whomever he appoints acting as the judge.

Wells Report would wither beneath the scrutiny of even an average defense lawyer.

 

[Joker]

There should have been an independent arbitrator in the Spygate case. I said as much back in 2007. The basic response has always been the "NFL is not real life" and Goodell can do what he wants without fear of any conflict of interest charges being leveled...when his entire friggin' life is one GIANT conflict of interest vis a vis the Patriots.

 

[DarrylS]

They really need to have the owners and NFLPA come up with a list of investigators deemed acceptable to both, because of crossover situations likes this one, where both players and teams are under suspicion. Then, when a situation arises, a random selection method would choose which particular investigator got the gig.

But Goodell.

That is pretty much how arbitrators were selected from the American Arbitration Association.. a number of arbitrators would be selected and both sides would agree on one person..

Have to question what seems to be the penchant of attorneys for this task, even though it needs to be written in "legalese", aren't there groups of retired FBI agents out there who might be better investigators??

The overdependence on attorneys is troubling..

 

[YOUGOTMOSSED]

Well, to be slightly charitable to Wells, McCann does point out that "When a business hires a law firm, an attorney-client relationship requires the firm to advocate for the client."

I exchanged a bunch of tweets with McCann weeks ago about how truthful Wells would have to be. McCann basically said that while Wells couldn't lie he was mostly free to whitewash and spin to make his client look good and accomplish the client's goals and in fact basically had to do that if it was needed to advocate for the client.

And you know, that essentially is a lawyer's job and I doubt many people here who ever have to hire a lawyer would want one who wouldn't do that.

I think the problem is more the NFL than Wells (not that he's off the hook). They could have arranged things so that the NFL wasn't the client (maybe have the formal client be some committee of owners, or have the NFL waive "zealous representation", or something) and they could have hired someone who hasn't gotten past NFL business and doesn't expect to get future NFL business. And NFL VP Jeff Pash (or any other NFL employee, let alone executive) should have had no part whatsoever in the investigation.

Yeah, the problem is I watch sports to escape from this sort of crap in my professional life. If the league has a NY bias and, for it's own sleazy motives, wants to turn the NFL into "lawyerball", it's not going to be a source of enjoyment; merely another source of stress.

 

[Froob]

I actually like the idea of the accused/investigated to be allowed a chance of an active defense and ability to present a defense, similar to a mock trial with the Commissioner or whomever he appoints acting as the judge.

Wells Report would wither beneath the scrutiny of even an average defense lawyer.

Even this guy would win

 

[IllegalContact]

The one thing that will be addressed is the fact that the league literally allowed the balls to go out on the field in the first half without being checked. this was a setup and/or sting operation and when the 32 owners put some thought into it, will be more concerned by this than any other part of this topic

 

[BradyManny]

Brady has his legacy and reputation after football to worry about, he's gotta get his ass in gear and start fighting this thing, and be more open about it. He's not Bill Belichick, he can't be the bad guy the way Bill can.

 

[Peachhead]

They really need to have the owners and NFLPA come up with a list of investigators deemed acceptable to both, because of crossover situations likes this one, where both players and teams are under suspicion. Then, when a situation arises, a random selection method would choose which particular investigator got the gig.

But Goodell.

Good idea. But they would also have to create a fund that's 50-50 league money-to-NFLPA money and have it jointly administered by both organizations, in order to pay the independent investigator.

If I correctly understand the article rlcarr posted, the mere act of one party paying the investigator necessarily makes him not independent. He literally can't be independent.

 

[IllegalContact]

Brady has his legacy and reputation after football to worry about, he's gotta get his ass in gear and start fighting this thing, and be more open about it. He's not Bill Belichick, he can't be the bad guy the way Bill can.

ummmm......no

he can simply say 'screw you guys, I'm outta here'