NFL Lawyer Intentionally Misled DeflateGate Judges, New Letter To Court Alleges
By Michael Hurley, CBS Boston
BOSTON (CBS) --It's been reported numerous times since early March that the NFL's attorney made factually untrue statements to the three-judge panel hearing Tom Brady's "DeflateGate" case in New York. But now, one legal expert is taking it one step further and saying that the untrue statements were made intentionally.
And he's telling the judges directly.
New York Law School professor Robert Blecker has taken a keen interest in the case, and his most recent letter to judges Robert Katzmann, Denny Chin and Barrington Parker Jr. minces no words.
"In their brief and at oral argument the NFL made several material misstatements of fact that could mislead this Court in its deliberation," the letter, dated March 17, begins. "NFL counsel was made aware of at least some of these material misstatements prior to oral argument and yet to the best of my knowledge not only failed to correct them but also made additional factual misstatements."
To help prove the point, Blecker attached a letter, written in January by Patriots lead counsel Daniel Goldberg. The letter was sent to NFL attorney Paul Clement, in which Goldberg laid out five different instances of the NFL making "significant misstatements" in its brief with the Second Circuit Court of Appeals.
"I am writing to call your attention to some of the misstatements, knowing that you, as an attorney of unquestioned integrity, will want to take such actions as are appropriate in the circumstances," Goldberg wrote to Clement on Jan. 26. "I am sure you will diligently review these matters. Even a single misrepresentation of the record evidence is something I know you would not countenance."
Blecker made it clear in his letter to the court that when Clement reiterated some of these untrue statements in front of the judges, the NFL's attorney violated the ethics of the courtroom.
"As a former teacher of legal ethics who has submitted the amicus brief in NFL vs. Tom Brady, I feel obliged to draw this court's attention to these false statements," Blecker wrote.
Blecker later added: "ABA Model Rule 3.3, Candor Toward The Tribunal, declares that 'a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.' If a lawyer 'has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.'"
Clement responded to the letter on Monday and has denied making any false statements. As such, Clement did not seek to correct anything he stated either in the brief or at the hearing.
"In sum," Clement wrote, "Mr. Blecker's accusations of material misrepresentations and ethical violations have no basis in fact."
Considering Clement wrote the brief for the NFL and filed it in December before receiving the letter from Goldberg in January, Blecker found it difficult to conclude anything except that Clement knowingly made false statements before the judges on March 3.
"I am hard put to understand how NFL Counsel [Clement] in his brief or at Oral argument before this court did not knowingly make false statements," Blecker wrote. "In addition to the attached personal communication [the letter from Goldberg to Clement], recent columns by Sally Jenkins in The Washington Post and Mike McCann in Sports Illustrated have extensively focused on NFL counsel's factual misstatements."
In particular, Blecker notes the following misstatements of fact:
--The NFL argued that multiple text messages throughout the 2014 season included mentions of Jim McNally as the "Deflator." In fact, just one message from May 2014 ever used that word.
--The NFL argued that Brady's counsel was present for "many of the interviews" conducted by Wells' team. In fact, "Brady's lawyers were present only at Brady's interview."
--The NFL argued that 11 of the Patriots' footballs measured below the allowable limit and that all of the Colts' footballs tested within the allowable range on at least one pressure gauge. The argument, Blecker claims, is disingenuous, because it doesn't account for the crucial element of timing. An independent AEI study thoroughly addressed that major issue last June.
--The NFL continued to claim at the March 3 hearing that Brady testified that his increased communication with John Jastremski centered only around preparation of footballs for the Super Bowl. As (full disclosure) I noted shortly after the hearing, this was simply not true. Brady testified numerous times to discussing the allegations being made in the media about potentially deflated footballs.
Blecker concluded that it remains Clement's duty to "correct false statements."
Clement, however, disagreed entirely with Blecker's claims.
"Mr. Blecker's letter is both procedural improper and wholly unfounded," Clement wrote. "Post-argument letters quoting media articles and leveling unfounded ethical allegations play no proper part in [the] process and should have no bearing on the resolution of this appeal."
Clement sought to address the charges one-by-one, and how successfully he did that will be up for the judges to decide. Clement also issued somewhat of a challenge to Blecker's own candor.
"Mr. Blecker's own duty of candor might be thought to include the need to disclose that the highly unusual 'Personal & Confidential' letter that somehow came into his possession was not from some disinterested observer, but from the New England Patriots' outside counsel," Clement wrote.
Blecker's listing of misstatements was similar to the ones noted by Goldberg in his December letter to Clement. Goldberg's letter, however, included the NFL distorting the context of the texts between McNally and Jastremski, the NFL minimizing league counsel Jeff Pash's role in the final editing of the Wells report, and the NFL overstating Brady's role in the 2006 rule change for preparing footballs.
Those who have closely followed the ongoing "DeflateGate" saga know Blecker first from his personal blog post, "DeflateGate: The Smoking Gun," written last August, in which he displayed a clear act of deception by Exponent in the Wells report. In September, he appeared on "60 Minutes Sports," and he laid out the many reasons why the Wells report and NFL investigation was deeply flawed. And in December, he filed an amicus curiae brief, in which he harshly criticized the NFL's investigation as "biased, dishonest and fundamentally unfair." He even went so far as to say the NFL's actions were "infected with bias, unfairness, evident partiality and occasional fraud."
So, after seeing Clement blatantly disregard the facts of the case when arguing before the three appellate judges, Blecker felt compelled to write this letter.
The letter concludes with an important admission from Blecker himself.
"Let me note my own no-longer-true statement in material cited in the amicus brief, which included me among those who detest the Patriots," Blecker wrote. "Witnessing the repeated, continuing unjustified abuse and distortion heaped upon the team by the NFL and an un(der)informed public has created in my a deep ambivalence. Thus no longer do I wish for Brady's on-field defeat but this Court should still consider me an honest neutral observer, concerned about the integrity of the sport."
A one-time "Patriots hater" converted? That may be the most unbelievable development yet in this 15-month saga, yet it speaks to the ongoing misconduct demonstrated by the NFL and its representatives.
You can email Michael Hurley or find him on Twitter @michaelFhurley.