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Posted on: September 03, 2015

in Blog

​​Brady Gets A Pass on a Cellphone That No Longer Exists

This post highlights the decision of the court regarding a pardon granted to NFL player Tom Brady after allegations of deflation resulted in a four game suspension.

Today, the Honorable Richard M. Berman (U.S.D.C., S.D.N.Y) vacated the four-game suspension imposed on Tom Brady by the National Football League Management Council (N.F.L Management Council v. N.F.L Players Association, 15 cv 5916, 15 cv 5982 (RMB)(JCF) Document 46 filed 9/3/15).

The decision was based primarily on these specific factors:

Brady was not awarded an opportunity to cross-examine one of the two lead investigators that lead to the original decision, nor was he provided copies of all of the evidence and interview notes that were used to create that decision. (2) The regulations that were used to penalize Brady as a player were in fact regulations that are directed to a team. (3) The application and degree of penalty imposed on Brady was inapposite to anything the NFL could demonstrate was similar to penalties imposed on other players for similar alleged misdeeds. (4) Even if Brady was in fact “generally aware” of deflation of footballs, there is no prescribed penalty to a player for the misdeeds of staff or other players, and certainly no stretch can be made in that regard to support the Commissioner’s four-game suspension.

Unless you’re a Patriots fan you’re probably not very satisfied, and even you are a Patriots fan, you may be wondering what happened to the issue about the destroyed cellphone. Judge Berman covered it.

In his opinion, he states at page 16:

Goodell's Award or Final Decision

On July 28,2015, Commissioner Goodell published a 20-page Award or Final Decision on Article 46 Appeal of Tom Brady, which, as noted, upheld Brady's four-game suspension. In the Award, Goodell states, among other things, (I) "[i]n appeals of Commissioner discipline under Article 46, the hearing officer gives appropriate deference to the findings of the disciplinary decision under review; that is so even when the Commissioner serves as hearing officer [i.e., as in this case]," (2) "I am bound, of course, by standards of fairness and consistency of treatment the game balls is not based solely on the Exponent study and the testimony of the scientific experts, but instead on consideration of all of the evidence in the record, including the conduct, text messages, and other communications discussed in both the Wells Report and at the hearing," (4) "it is unlikely that an equipment assistant and a locker room attendant would deflate gameballs without Brady's knowledge and approval and that Mr. McNally and Mr. Jastremski would not personally and unilaterally have engaged in such conduct in the absence of Brady's awareness and consent," (5) "[t]he most significant new information that emerged in connection with the appeal was evidence that on or about March 6, 2015 - the very day that that he was interviewed by Mr. Wells and his investigative team- Mr. Brady instructed his assistant to destroy the cellphone that he had been using since early November 2014, a period that included the AFC Championship Game and the initial weeks of the subsequent investigation," and (6) "the conduct at issue here- specifically the willful destruction of potentially relevant evidence goes well beyond Mr. Brady's failure to respond to or fully cooperate with the investigation."

Award at l, 5, 7-9, 17 (emphasis added)

This finding by Goodell goes far beyond the "general awareness" finding in the Wells Report or in Vincent's May II, 2015 Disciplinary Decision Letter to Brady.

Later, on page 21, Judge Berman picks up the issue of the destroyed cellphone:

During the August 19, 2015 oral argument, it became apparent that no specific determination was made either in the Vincent's Disciplinary Decision Letter or the Goodell Award as to what portion of Brady's discipline was attributable to alleged ball tampering and what discipline was attributable to non-cooperation (and, for that matter, what discipline was attributable to the destruction of Brady's phone)

Q [Court]: "So which of the four games [suspension] is attributable to ball tampering, and which is attributable to failure to cooperate?"

A [Nash]: "Well, the Award doesn't specify, and I don't believe there's any requirement in the CBA to break it down that way. I think the Commissioner makes a judgment, and he says this in the Award, he says taking the record as a whole, considering all of the factors, he determined that a four-game suspension was the appropriate sanction." Aug. 19,2015 Hr'g Tr. 59:17-25.

So what happened? We know in our own eDiscovery work that spoliation of evidence leads to bad things, including, potentially, sanctions or an adverse inference. It appears that the Commissioner attempted to impose those, piled on, in the final award and decision letter.

But in the NFL management and players agreements, if there’s a penalty for obstructing an investigation, there is nothing written about it. Not only is there no precedent within NFL proceedings for it, there’s in fact precedence that there is no penalty for impeding an investigation.

So Tom gets a pass on the cellphone.

Read the full opinion here


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