Closer Look At NFLPA's Filing Against NFL On Tom Brady's Behalf
BOSTON (CBS) -- The case of Tom Brady vs. the NFL is finally going where we all knew it would eventually end up: court.
From the very second commissioner Roger Goodell issued a four-game suspension back in early May, it was fairly obvious that no compromise was going to be reached. And though it took nearly three months to sort the rest of it out, Goodell finally announced this week that he'll be standing by his initial decision.
That is in large part because had Goodell reduced the penalty, it would have been seen as a weakness by the NFLPA, which nevertheless has found plenty to take issue with regarding the decisions of Goodell and the NFL since January. These point of contentions were laid out fairly thoroughly -- and with a rather sharp-tongued tone -- in the form of a 54-page filing with the U.S. District Court in Minnesota.
Because not everyone has the time to read a 54-page legal filing, and because a lot of it is frankly repetitive, here's a digest of some of the key points and the stronger points in the NFLPA's argument against the league.
Logistics
The NFL will have its way: this case will not be heard in Minnesota at all. It was reported Thursday morning that the case will be heard in New York instead.
Shortly after Goodell announced that he'll be upholding Brady's suspension, and while the country remained in a state of pandemonium over the scheme of Brady to destroy his cell phone, the NFL quietly filed a lawsuit of its own in Manhattan. The effort was a pre-emptive one, as the league knew that the NFLPA would try its best to select a union-friendly judge and/or court.
If the country were paying attention to this legal maneuver, it would recognize it as being just as suspicious as whatever Brady did to his cell phone back in March. This was a filing that took place just an hour or so after the NFL announced the decision, showing that the entire process was a coordinated effort, one in which the "independent arbitrator" was working closely with legal strategists to beat the NFLPA to the punch, so to speak. The fact that the league filed its own pre-emptive lawsuit does not speak to the league's belief that its case is ironclad.
The NFLPA addressed this in the filing.
"The NFL engaged in attempted preemptive forum shopping by filing -- virtually simultaneously with the issuance of the Award (the timing of which was unknown to the Union and Brady) -- a proceeding to confirm the award in the Southern District of New York," the union stated. "The League knew that the central notice issues the Union had raised in the arbitration were directly related to the Peterson proceedings pending before this Court and yet deliberately sought to avoid review by this [Minnesota] Court."
The "Peterson proceedings" refers to Judge David Doty ruling in favor of Adrian Peterson in the Minnesota Vikings' running back's case against the NFL for an unfair suspension. The NFLPA relies on this precedent numerous times throughout the decision and tried to characterize the NFL as a league in defiance of the Minnesota court. Hence, the efforts to get the case heard in Minnesota.
Yet the NFLPA lost round one, and the case will be heard in New York. But it's far from a devastating blow to the NFLPA, which referenced multiple other rulings in the filing which did not take place in Minnesota.
Though the NFLPA will have to adjust its wording, the filing will presumably focus on the same issues detailed in the original filing.
Also, the NFLPA did request that a decision be made by the court by Sept. 4 "in order to prevent him from suffering severe and irreparable harm from the loss of regular season games due to his unlawful suspension."
Biting Tone
Though it did not venture quite into "Wells Report In Context Territory," there was clearly a tone throughout this filing that showed that its authors feel a great distaste for the league. In short, the NFLPA is not messing around. Here are some examples of some of more sarcastic, biting bits from the filing. (These are excerpts, not necessarily listed in any particular order.)
"But the Award's legal defects do not stop there."
"Additionally, the Award is the product of a fundamentally unfair process, and was issued by an evidently partial arbitrator who put himself in the position of ruling on the legality of his own improper delegation of authority in violation of the CBA."
"On May 6, many months and many millions of dollars in legal fees later, Paul, Weiss and the NFL issued the 'Wells Report' summarizing the findings from their investigation."
"The purportedly independent Wells Report was edited by [Jeff] Pash, the NFL's General Counsel, before its public release."
"At the hearing itself, Paul, Weiss -- the purportedly 'independent' law firm whose findings about Brady were being challenged -- abandoned all pretense of objectivity, and actively participated as counsel for the NFL conducting direct and cross-examinations of witnesses (including Brady's)."
"The Award also ignores Vincent's application of a 'generally aware' disciplinary standard that was pulled from whole cloth without notice and applied to a player for the first time in NFL history."
"The Award also makes much of Brady's purported non-cooperation, (including a brand new, hyperbolic and baseless accusation that Brady 'destroyed' his cell phone after being advised by his agents-lawyers not to tum over private communications to the NFL's outside law firm). This issue is a complete red herring because the NFL already had all of the relevant text communications by Brady from other Patriots personnel -- a fact established by Brady's telephone records, which were produced at the hearing, and which showed the time and date of every text and phone call to or from Brady and Patriots personnel (or anyone else)."
"The Award also tums a blind eye to the NFL's undisputed failure to implement procedures for testing the footballs ... "
"This was because no one at the NFL knew that natural forces of temperature, timing and wetness could cause balls to lose pressure after being tested and set by officials before the game. More specifically, no one at the NFL knew there was something called the Ideal Gas Law explaining that balls would naturally deflate when brought from a warm environment (i.e., the officials' locker room) to a cold environment (i.e., the field)."
"Because of the absence of any protocols or basic understanding of what factors are relevant to football deflation, the data collection was a disaster."
"Just three days ago, the NFL made it known that it is finally going to implement procedures for testing ball pressure during the upcoming NFL Season-a year too late for Brady."
"Adding to the circus-like atmosphere of the proceedings, Wells' partner Lorin Reisner (who signed the Wells Report's cover page) sat at counsel table for the NFL at the arbitration ... and otherwise defended Brady's discipline even though his personal work on the Wells Report was being reviewed, and even though his law partner Wells testified at the hearing."
"Prior to the appeal hearing, Brady voluntarily produced all of the requested communications in his possession. The NFL does not dispute that these communications contain absolutely no incriminating information. Instead, the NFL complains that they do not include all of the requested text messages ... "
"Vincent apparently chose not to apply the Player Policies to Brady because a fine would not have quenched other NFL owners' thirst for a more draconian penalty."
" ... there is no evidence that Wells bothered to investigated whether the Competitive Integrity Policy was given to players."
"This undisputed evidence eviscerates Goodell's futile attempt -- in his Award -- to distinguish Brady's alleged non-cooperation from that of other players who were merely fined."
"Wells and Exponent decided to assume the opposite of what Referee Anderson stated was his 'best recollection' of which gauge he used, despite accepting at face value everything else that Anderson had told the League's investigators."
" ... Goodell simply declared as gospel his own version of the 'facts.'"
"The combination of all the actions set forth above rendered Brady's appeal hearing a kangaroo court proceeding, bereft of fundamentally fair procedures, requiring that the Award be set aside."
Strongest Points
On the whole, the points made by the NFLPA are stronger than anything the NFL has released at any point over the past six months.
Namely, the union based its chief argument on the fact that no player in the history of the league has ever been suspended on the basis of "general awareness," no player has ever been suspended for non-cooperation (citing Paul Tagliabue's ruling on the Saints and "BountyGate"), Brady was given no notice that the potential for a four-game suspension ever existed, and that Goodell violated the CBA and its "law of shop" in delegating his power to NFL executive VP Troy Vincent.
Violating The CBA
That last point is an important one. The initial punishment announcement from the league gave the impression that the decision to suspend Brady for four games was a conclusion reached by Vincent, who led staff meetings on the matter after the Wells report's release.
"Commissioner Goodell authorized the discipline that was imposed by NFL Executive President Troy Vincent," the NFL's release said on May 11.
The NFLPA argued in its filing that "in this case, Goodell improperly abdicated his CBA role and delegated his disciplinary authority to NFL Executive Vice President Troy Vincent."
This complicated matters throughout the appeal process, and the NFLPA still contends that Goodell needed to serve as a witness in the arbitration hearing, not the arbitrator.
"Goodell had directed the unlawful delegation of his CBA disciplinary authority to Vincent," the NFLPA stated. "Thus, as arbitrator, Goodell would have to determine the facts and CBA legality of his own conduct."
Further: "As Vincent's letter disciplining Brady makes crystal clear, Goodell delegated to Vincent his exclusive CBA authority to impose conduct detrimental discipline on Brady."
"True to form, Goodell's Award is little more than an exercise in rehashing the Wells Report, and making unfounded, provocative and mystifying attacks on Brady's integrity."
The Competitive Integrity Policy
The Competitive Integrity Policy is a document which the league distributes to teams, not players. That distinction serves as a central point in the NFLPA's case.
"It is undisputed that Brady never saw the Policy prior to these proceedings," the NFLPA stated.
That's where Adrian Peterson comes in.
"The arbitration award [to Peterson] was nevertheless vacated because it violated the essence of the CBA requirement that Peterson have advance notice of the specific policy and penalties to which he could be subjected," the NFLPA argued.
Basically, this court made that ruling in the past, after Goodell tried to apply a standard which was established after Peterson's offenses. Because Peterson had no awareness of this penalty (because it did not exist), he could not serve punishment for it. The NFLPA is hoping the same applies to Brady in this instance, given the lack of precedent and the reliance on a document which was never distributed to players.
"Punishing Brady with a four-game suspension pursuant to no policy -- when the Player Policies cover the very subject of equipment tampering and only provide for a small fine -- is exactly the type of lack of notice and bait-and-switch that this Court found to be contrary to the essence of the CBA in Peterson," the NFLPA argued.
The NFLPA also argued that at no point was Brady ever warned that failure to turn over his private communications could result in discipline.
"It is established law of the shop under the CBA that NFL players may not be subject to discipline without advance notice of what conduct might result in such discipline, and what the disciplinary consequences might be," the NFLPA stated.
The NFLPA called upon rulings on Adrian Peterson, Ray Rice and the Saints players to support this claim, even adding that Goodell himself testified to his inability to punish players without advance notice in the Rice case. While this instance is unique from those situations, it is nevertheless a very strong argument.
Lack Of Evidence
This remains a key sticking point, for obvious reasons.
"The Wells Report did not find that Brady actually knew about any ball deflation at the AFC Championship Game; it did not find that Brady directed or authorized any ball deflation; nor did it find that Brady even had any knowledge of the Competitive Integrity Policy pursuant to which he was punished and the Wells-Pash Investigation was conducted," the league argued.
Despite all of that, the league based its disciplinary decision "solely on the limited factual conclusions from the Wells Report."
Lack Of Independence
"In recent years, Paul, Weiss has represented the NFL in a number of important legal matters," the NFLPA noted. "For example, the NFL paid Paul, Weiss more than $7 million to defend the League in a recently settled class action related to concussion liability. With respect to the Wells-Pash investigation alone, Paul, Weiss had already billed the NFL millions of dollars at the time of the hearing for its services in conducting the investigation."
Certainly, the NFLPA's referring to the investigation as the "Wells-Pash investigation" was no accident.
"Despite the NFL declaring Paul, Weiss's 'independence,' the Award confirms the NFL and Paul, Weiss considered themselves to have an attorney-client relationship for purposes of the investigation," the union stated, later adding: "Wells further testified that Pash even had an opportunity to comment on a draft of the Wells Report before it was issued."
The NFLPA also argued that Goodell's stamp of approval on the Wells report prior to the appeals hearing compromised his impartiality during the appeal.
"Goodell's choice to make these public comments locked him into supporting the Wells Report and rendered him incapable of reaching a contrary conclusion in Brady's appeal, as doing so would undermine his own competency as Commissioner," the NFLPA reasoned. "The Award itself proves this point -- it is just a recycling of the conclusions of the Wells Report as though the arbitration hearing never happened."
An Unfair Appeals Hearing
Among the many arguments made by the NFLPA about the fundamental lack of fairness in the appeal hearing, one stood out the most. That is that NFL counsel had access to investigative files from Ted Wells -- files to which NFLPA lawyers were not granted access.
Brady was also denied the right to call certain witnesses such as Pash or Goodell during the hearing, according to the NFLPA. This ignored a number of recent rulings which went against Goodell.
"As the Award acknowledges, however, Wells testified that Pash reviewed a draft of the Wells Report and provided Paul, Weiss with comments prior to the Report's public release," the NFLPA stated. "Given the NFL's claim that the Wells Report findings were 'independent,' and that Pash played no substantive role in the investigation, it was fundamentally unfair to deny Brady the opportunity to confront Pash about his changes to the Wells Report and his overall involvement as co-lead investigator.
"If Pash truly had no substantive role, then he simply could have so testified. Of course, such testimony would beg the question of why the NFL's General Counsel would then be editing a supposedly independent investigative report. Cognizant of this dilemma, Goodell simply precluded the NFLPA and Brady from asking Pash any questions at the arbitration."
No Rules In Place At Time Of Offense
The NFLPA jumped on the notion that the league's announcement this week about new protocols for handling footballs served as a tacit admission that the league had no such protocols in place back in January.
"In fact just three days ago, the NFL let it be known that, for the first time, it is implementing procedures for ball pressure testing -- a stark concession that it had no procedures in place when the data on which Brady's punishment was based was collected," the NFLPA noted. "The League's admitted failure to timely implement any such data collection protocols caused the League's scientific and statistical consultants to make a multitude of unsupported assumptions and rendered their analysis utterly unreliable."
No Precedent For Suspension For Non-Cooperation Or "General Awareness"
When Goodell's predecessor, Paul Tagliabue, ruled to vacate the Saints' BountyGate suspensions back in December 2012, it was a massive blow to Goodell's ego. And, thanks to the NFLPA, it's a ruling that still haunts him to this day.
The NFLPA relied heavily on Tagliabue's ruling, which was based on 40 years of experience in the NFL and 17 years as commissioner.
"There is no evidence of a record of past suspensions based purely on obstructing a League investigation," Tagliabue wrote, as relayed by the NFLPA. "In my forty years of association with the NFL, I am aware of many instances of denials in disciplinary proceedings that proved to be false, but I cannot recall any suspension for such fabrication. There is no evidence of a record of past suspensions based purely on obstructing a Leogue investigation."
The union stated, "But it is undisputed that Wells never informed Brady that there could be any disciplinary consequences if he did not comply with the request for e-mails and texts. Moreover, Brady testified that if anyone had told him he could be suspended for declining to produce the private communications, he would have produced them -- notwithstanding the advice of his agents-lawyers."
Later: "Yet no NFL policy or precedent notifies players that they might be disciplined for general awareness of misconduct by other people. For example, no player in NFL history has ever been suspended for being 'generally aware' that another player was taking steroids or committing any other type of policy violation."
The NFLPA noted that all players who were "generally aware" of the Saints' bounty program were not disciplined, and in fact only the players who participated in the program were punished by Goodell -- "and even those suspensions were subsequently vacated by Commissioner Tagliabue because of, among other things, lack of adequate notice."
Likewise, players who were "generally aware" of Richie Incgonito's bullying of Jonathan Martin were not punished. Only Incognito was punished.
The NFLPA also noted how a Jets staffer who was found to be attempting to manipulate kicking balls was punished, but the kicker -- aka "the player who could have benefited from the alleged 'attempt to gain a competitive advantage' -- was not investigated, let alone disciplined."
Lastly, the NFLPA noted that no players were punished after the Vikings and Panthers were found to have employees on the sidelines putting footballs in front of heaters.
The Red Herring
The NFLPA contends that the NFL's focus on Brady "destroying" his phone is a red herring.
"While the Award makes much of the discarded phone, Brady's phone records confirm that the League had access to any text messages between Brady and Jastremski and Schoenfeld because the League had access to their phones, and Brady simply had no phone or electronic communications of anv kind with McNallv."
This is a point that somehow has been washed out in the whole fiasco. Ted Wells scanned the phones of Jastremski, McNally and Schoenfeld. All communications with Brady showed up on their phones. Many of them were printed in the Wells report. Brady therefore hid no communications with the only people who could have been involved in the "scheme," and so his phone records become much less significant to the NFL's case.
Nevertheless, the NFL's ruling this week focused heavily on the "destruction" of the cell phone.
Read more from Michael Hurley by clicking here. You can email him or find him on Twitter @michaelFhurley.