By Jeremy M. Evans, Esq.
Before we begin, we must understand the legal context of the hearing(s) to occur in mid-August 2015. New York-based U.S. District Judge Richard Berman will not be reviewing the factual or evidentiary matter with regard to Tom Brady’s innocence or involvement in Deflategate. Once again, however, a judge will be reviewing Commissioner Roger Goodell’s decision-making ability and the process of handing-down discipline, in a public forum, with public tax dollars, where, ironically, the National Football League (NFL) is a billion dollar business that receives large tax subsidies for stadiums and related across this great Land.
Practically, and unfortunately, the court will not be dealing with the science and evidence of or against deflating footballs. This is a sad fact created by Goodell’s NFL that will harm the league, Tom Brady, the Patriots, and most importantly labor negotiations with the Players Association in 2020. Do you think the Players and their Representatives will remember this? Certainly.
With that being said, here are seven reasons at U.S. District Judge Richard Berman’s disposal that he could consider to dismiss Tom Brady’s suspension:
“What a difference a day makes.” Thank you Dinah Washington for singing those beautiful words. The news cycle since Commissioner Goodell’s appeal decision was made public has been to condemn Patriots Quarterback Tom Brady. Well, with the release of the actual transcript from the NFL Appeal Hearing, no thanks to the “No Fun League’s” help, is but a 180-degree change with condemnation of Roger Goodell. The release of the transcript means the public will actually have the facts to form their own opinion. Obviously, Judge Berman has access to the transcript.
(2). Per Investigative Attorney Ted Wells: "I did not tell Mr. Brady at any time that he would be subject to punishment for not giving -- not turning over the documents. I did not say anything like that."
This is pretty simple. The investigative attorney hired and paid for by the NFL told Tom Brady he would not be disciplined for failing to turn over evidence. Tom Brady’s attorneys in turn told Brady to not turn over evidence (or lack thereof). However, Goodell’s main point of contention against Tom Brady in his appeal ruling was that Brady failed to turn over evidence even though we (the NFL) told you that you did not need to do so. Goodell then leaked information, which he denied doing, from the appeal hearing that Brady destroyed his cell phone and evidence prior to the hearing. Let those facts and the unfairness of it all sink in for bit.
Here is a word. Conjecture, an opinion or idea formed without proof or sufficient evidence. Brady denies involvement. Despite Brady’s denial, under oath with the possibility of perjury, and nothing in the record or otherwise that directly connects Brady to deflating footballs or knowing about a supposed scheme to do so, Goodell finds Brady destroyed evidence despite point two above and that he was involved.
Goodell forgets that Ted Wells’ report findings rested on these two gentlemen and their communications, yet fails to call them as material witnesses? Goodell justifies his decision in a footnote of his appeal decision that because the NFLPA (National Football League Players Association) did not call the witnesses, he would not do so. Possibly Goodell feared their testimony would show a lack of scheme and involvement all together. Unfortunately, Goodell cannot be both a tactician and a neutral at the same time. See point seven (7) below for more on this.
Mike Florio of NBC Sports writes: “Brady ADMITTED on multiple occasions that he talked to Jastremski about the tampering allegations.” However, “Goodell thinks Brady was trying to conceal or downplay that fact that he talked to Jastremski about the tampering allegations. If, under that theory, Brady was trying to hide that fact that he and Jastremski talked about the allegations, Brady would ultimately be trying to hide the fact that were hoping to get their ducks in a row, for illegitimate purposes.”
(6). NFL executive vice president Troy Vincent, who signed the initial ruling suspending Tom Brady for four games along with the organizational suspension, admits Brady was disciplined under policy not given to players
Mike Florio of NBC Sports writes: “The transcript of Brady’s appeal hearing includes admissions from executive V.P. of football operations Troy Vincent that prove these two key points.
“Where do you find the policy that says footballs can’t be altered with respect to pressure? Is that going to be in the competitive integrity policy that Mr. Wells cited in his report?” attorney Jeffrey Kessler asked Vincent.
“Game-Day Operations Manual,” Vincent said. “Is it correct, to your knowledge, that the manual is given to clubs and GMs and owners, et cetera, but the manual is not given out to players; is that correct, to your knowledge?” Kessler said.
“That’s correct, to my knowledge,” Vincent said.
“In fact, when you were a player, you were never given that manual, right?”
“No,” Vincent said.
Earlier in the hearing, Brady testified he never received a copy of the Competitive Integrity Policy.”
Here are a few more words. Judge, Jury, and Executioner. Heard of the saying? It plays well here because if someone told you that, in a disciplinary matter, that there would be one person that would hire the investigator, help write and edit the eventual report from the investigator, be the boss and employer of the person (Troy Vincent) who issued the initial decision in writing, hired the attorneys to argue in favor of the report at the initial hearing, and at the appeal, and that this one person would also be the judge, jury, and decision-maker at the appeal, you would be surprised, as it smacks in the face of anything and everything we hold dear as Americans with regard to Due Process of the Law. However, this is what has happened under Goodell’s leadership with this matter and many more like it.
Forget what has been collectively bargained, being the Commissioner does not mean you can go above the law. This entire situation is truly troublesome as the initial report of low PSI levels was reported by a rival Patriots rival general manager, the Indianapolis Colts, and the same team that lost 45-7 in the 2015 AFC Championship game and 42-20 during the regular season (no motivation there at all, right?). All the while, a current NFL employee and former New York Jets player (also a Patriots rival, a bitter rival some would say) was involved with the initial fact-finding and reporting of Deflategate.
Goodell should hire a plumber for the NFL with all the leaks in his office. Here is one suggestion via Seattle Seahawks Running Back Marshawn Lynch.
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