Patriots QB Tom Brady’s Appeal Set, Three Points to Watch For
 Tom Brady's appeal of his four-game suspension begins Tuesday morning in New York City. (USA TODAY Images) |
All eyes are on Park Avenue in New York City on Tuesday morning as the appeal for Tom Brady and his four-game suspension reach the NFL office and Roger Goodell.
Brady and his legal team will face off against the league’s lawyers in the latest episode of Deflate-gate and its aftermath. Brady was suspended on May 11 for being “generally aware” that his footballs may have been tampered with during the AFC Championship Game. Brady immediately announced thru his agent Don Yee that he intended to appeal. He hired Jeffrey Kessler and they asked the Commissioner to recuse himself from hearing the appeal since they plan on calling him as a witness. Goodell refused and in accordance with the CBA, has the authority to be the arbiter in these cases.
Ted Wells is expected to be on-hand for testimony and each side is expected to question him at length. Wells was paid $5 million for conducting what the league characterized as an “independent investigation” that took 103 days, or roughly $48,543.69 a day. Since the Wells Report has been released, it has been scrutinized by every scientific body from universities to junior high school science classes and will be attacked by the defense.
While testimony may or may not wrap up on Tuesday, don’t expect any revelations forthcoming from the league office. The appeal from Greg Hardy was heard nearly six weeks ago and a decision is still forthcoming. However, here are three major points that will be discussed during the appeal that will need to be addressed:
Does the League Have Other Evidence…i.e. a Smoking Gun?: Since the Wells Report release, many have questioned its analysis and its independence. One thing hasn’t changed, and that is the confidence of Goodell.
The Commissioner has been adamant that the Wells Report and the scientific evidence submitted by Exponent is all the league needed to suspend Brady and went further saying he welcomed any further evidence by Brady’s team and said he looked forward to hearing from Brady himself.
Could the league have in their possession evidence that it hadn’t previously produced? In the Wells Report they cited text messages by Patriots equipment assistants John Jastremski and Jim McNally referring to “the Deflator” as their evidence that the footballs had been deflated.
But since being let go by New England, the silence from Jastremski and McNally has been deafening. Considering the tone of the texts between the two during the season, especially when Brady was complaining about the air pressure in the footballs, could the NFL have reached out to either or both and got them to admit wrongdoing? That was something neither had done prior
Brady’s Non-Compliance Issue: One of the main factors of his four-game suspension according to the league was the fact that he didn’t comply with the league’s request that he turn over text messages and emails pertaining to Deflate-gate.
"I think we were very clear in the letter (to Brady), that the non-cooperation was a factor in the discipline, absolutely," Goodell said at the league’s Owner’s meetings. "… We do expect to have that in investigations. That's an important part of it. And when there isn't full cooperation, that is certainly part of the discipline."
Brady’s camp is expected to argue that after sitting with investigators for a full day he was under the impression that he had in fact complied with the league and that the failure to turn over said material was never explained to him that it was non-compliant.
Also the absolute sieve that NFL HQs has been with more leaks than a colander about this issue with many of the leaks to members of the media out and out fabrications has been a major sticking point. Could Brady turn over the material during the appeal and have the obstruction charges removed? Possibly but with the league already having in their possession the phones of Jastremski and McNally, any communication between between Brady and the two is already in the league’s hands.
Unless of course the league is on a fishing expedition to get more people involved….i.e. Bill Belichick.
Then there is the precedent set down by the league itself. The league’s rule covering the treatment of the footballs is considered an equipment issue and the fine for said violations is $25,000. A similar violation by the San Diego Chargers netted the fine a few seasons ago when they were found to be rubbing the footballs with a towel covered in a sticky material that would aid them in throwing and catching it.
Last season in a game between the Carolina Panthers and Minnesota Vikings, it was discovered that warming towels were used on the sidelines a clear violation of the league’s rules. But no fine, no suspension and no investigation followed. The league sent each team a letter asking that they don’t do that again.
During an investigation by the league as to a supposed Brett Favre sexual misconduct allegation, Favre refused to turn over his phone and/or texts that he supposedly sent sexually suggestive pictures to Jets staffer Jenn Sterger. Favre’s punishment was a $50,000 fine, something quite different from Brady’s four-game suspension and $1.88 million dollar fine. Brady’s lawyers will argue and rightfully so that those punishments are excessive and arbitrary.
Attacking the Wells Report:Brady’s team will attack several points of the Wells Report. Among them….that the scientific data is self-serving and just plain wrong. The fact that Exponent used the data that strengthens the NFL’s case should be no surprise. They have a history of slanting their data to whoever pays for their services. In defending the tobacco industry, Exponent concluded that second-hand smoke isn’t dangerous. The science used by Exponent just doesn’t hold up. AEI and others proved that in their investigations since.
There have been several points about the true independence of Wells from the beginning. The Patriots argued that it was a sting operation. Commissioner Goodell and Dean Blandino the VP in charge of Officiating for the NFL both deny these charges. Blandino stated that the first he heard of the deflating of footballs was at halftime of the AFC Championship Game. But Colts GM Ryan Grigson sent an email to the league the week prior to the game alleging that the Patriots were not inflating their footballs to the correct PSI as handed down by the league.
The league forwarded Grigson’s email to various officials and Blandino himself told referee Walt Anderson to “ensure the proper protocols for the footballs are followed.”
Why weren’t the Patriots informed of these concerns? Wells’ reports that the Colts’ allegations were dismissed out of hand are an out and out lie considering the actions of Blandino the night prior to the game.
And the league and Wells have cleared themselves of a sting. But while Goodell said Wells investigated the Patriots allegations of a sting operation and cleared the league, it has come to light that he didn’t investigate the league at all.
An email from league attorney Jeff Pash to Wells states to Wells that he investigate the football PSI issue and the league would investigate themselves.
While no outside media or observers will be allowed inside the appeal on Tuesday morning…..it would make for some compelling television. And so it begins. But don't expect the process to end here today, it is just the opening salvo in the process.
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