#DFG: Canceling the Noise

[WayBackVazquez]

Isn't a four game suspension wholly out of line with the "law of the shop" here? I would think even two would be, considering no prior suspensions for "ball tampering," let alone general awareness of ball tampering, and Favre receiving only a fine for impeding an investigation. I'm no labor lawyer, but based on what I've read of the Peterson case, I don't see why Brady wouldn't have a fair shot in court.

 

[Ed Hillel]

 
I'm not sure this really washes.  The NFL had already made it a big deal.  They leaked the erroneous report that the balls were >2 psi under regulations and did nothing to correct that misapprehension, they let the narrative build that this was an egregious assault on the integrity of the game, they let a media discussion continue all week in which a fair number of voices were calling for Belichick and/or Brady to be suspended for the Super Bowl.  By doing so, they (a) boxed the Patriots into a corner in that initial week in which the team was forced to respond very forcefully and (b) made it 100% obvious to the Patriots that this was going to be an antagonistic process in which they were unlikely to get a fair hearing and in which none of the Patriots complaints about league conduct would get any traction whatsoever.
 
Once we've arrived at that point, subsequent decisions by the Patriots to offer less than full cooperation weren't going to help matters but the league was likely going to hammer them no matter what given the evidence discussed by the Wells Report. 
 
I don't see any scenario where Tom Brady hands over his cell phone (assume it contains nothing of interest) and McNally does a second interview focuses on his "deflator" text (assume he makes the weight-loss claim) and the league lets the Patriots off with a slap on the wrist because they fully cooperated.  That just doesn't square with the rest of the evidence.

 
Now we know that, beyond merely leaking an erroneous report, they sent an official NFL letter to the Patriots with deliberately false information that a football measured at 10.1 PSI, which was nowhere near any of the measurements. Shouldn't there be legal recourse to this issue, separate from Brady's appeal? IMO, knowing this information makes the whole idea of the Wells Report less credible, especially when you combine that with Wells apparently not investigating the NFL leaks/conduct at the NFL's behest, yet also added into the report that he found no evidence of wrongdoing by the league (which he wasn't looking for!). Those are not the actions of an independent investigator, nor is banning Patriots' counsel from testimony of their accusers.

 

[ivanvamp]

 
 
The best part is not only does Vincent assert that there's evidence of tampering in earlier games, but he also steps right over the evidence to the contrary.

 
Well that's what Wells does too.  They completely ignore any and all evidence that isn't convenient for their narrative.  And they make other leaps of faith, inferring things that no impartial judge or jury would ever find convincing.

 

[SeanBerry]

Isn't a four game suspension wholly out of line with the "law of the shop" here? I would think even two would be, considering no prior suspensions for "ball tampering," let alone general awareness of ball tampering, and Favre receiving only a fine for impeding an investigation. I'm no labor lawyer, but based on what I've read of the Peterson case, I don't see why Brady wouldn't have a fair shot in court.

 
In court? Is he going to turn over his phones and e-mail records? This isn't going to court.

 

[Bob420]

I agree that's a stretch. Wouldn't the better excuse be that JJ was simply bullshitting McNally? As in, Brady really didn't know who McNally was, and JJ was just trying to make McNally feel important?  

That is definitely believable. My original comment wasn't about guilt or that they were doing anything illegal. I just thought it was such a stretch to try and say it could be anything other than Tom and football pressure they are talking about.

 

[WayBackVazquez]

In court? Is he going to turn over his phones and e-mail records? This isn't going to court.

There's no need for discovery in a court review of an arbitral decision.

 

[joe dokes]

I don't understand at all how, if this goes to court, that a truly independent judge wouldn't look at the Wells report and conclude that it is a steaming pile of dog crap and that, even if it was not, that Brady deserved a four game suspension.

 
That's not how a federal court reviews decisions made as a result of a collectively bargained disciplinary proceeding. Someone who probably has more experience than I do should feel free to expand, but judicial review review isn't necessarily about "did the prior proceeding get it right." 

 

[Ed Hillel]

Regardless of how this all shakes out, negotiations over the next CBA are going to be a trainwreck. The league knows it has to change this process, but I'm sure they'll hold out for a concession, in which case the NFLPA will tell them to F off, since they know the league knows they have to change it. Should be an adventure.

 

[Eddie Jurak]

 
Player friendly? I pretty sure everyone though the owners got the better end of the deal.

They did, but some wanted better than they got.

 

[cshea]

Maybe they had it and didn't include it for some reason, but I wish the Pats had included the synced up screenshot of Jastremski holding the jacket when McNally texted him during the GB game. It would've helped the credibility of deflate=weight loss theory and and that these 2 chuckleheads texted meaningless banter back and forth quite often.

 

[Tim Salmon]

I agree that's a stretch. Wouldn't the better excuse be that JJ was simply bullshitting McNally? As in, Brady really didn't know who McNally was, and JJ was just trying to make McNally feel important?  

Yes, I was railing about this text sequence yesterday. I think the prevailing opinion was that the timing of the texts and awkward phrasing aren't very significant.

 

[jsinger121]

 

[kartvelo]

This is pretty bad for the NFL's argument of non-cooperation. If Wells's team already had the text messages before the first interview, there is no way he should get a second interview. The only point of the second would be to catch McNally in an inconsistent statement which is why the laws rarely allow a second crack at a witness absent evidence that couldn't have been discovered earlier.

And as someone many posts upthread said, the first thing anyone in that office orders done is a search-all for the string "deflat." They either had it or chose to ignore it prior to the first interview. Maybe before the first (fourth) interview they thought they had a solid case based on the science, but when that came up empty (after the first/fourth interview), they decided they had to take a different tack.
That said, we've heard the explanation of the use of the term, and it's pretty clear how it was used in the GB game (unless our time-syncing source is unreliable, of course).

 

[ivanvamp]

Isn't a four game suspension wholly out of line with the "law of the shop" here? I would think even two would be, considering no prior suspensions for "ball tampering," let alone general awareness of ball tampering, and Favre receiving only a fine for impeding an investigation. I'm no labor lawyer, but based on what I've read of the Peterson case, I don't see why Brady wouldn't have a fair shot in court.

 
This has been my whole point all along.
 
1.  There is no actual evidence of wrongdoing.  There is circumstantial evidence that easily fits the "the Pats did nothing wrong" scenario.
 
2.  There is actual evidence that Brady is completely innocent here.  The only information we have of Brady is that he made it clear he wants the balls at 12.5.  
 
3.  But even if Brady DID order the code red, then what is the appropriate punishment for it?  
 
  a) If we go by the rulebook related to tampering with the footballs, the past two cases - SD and Carolina - neither team was actually punished for tampering.  So how does a 4-game suspension and the loss of $1 million and two draft picks even REMOTELY fit there?
 
  b) If we say it's because they weren't "cooperating", then past cases of that - Brett Favre and the same SD situation - received a $50k and $20k penalty for not cooperating with the investigation.  So how does a 4-game suspension and the loss of $1 million and two draft picks even REMOTELY fit there?
 
  c) If we say that it's because of past infractions, making NE a multiple offender, then what do we make of the fact that the NY Jets, for example, are three time offenders from 2010-2015 (that's three infractions in 6 years, compared with two infractions in 9 years for NE), and the *smallest* penalty the Jets received was the most recent one ($100k for tampering with Revis)?  So how does a 4-game suspension and the loss of $1 million and two draft picks even REMOTELY fit there?
 
 
In other words, they never came CLOSE to demonstrating any wrongdoing.  If they did, they never came CLOSE to demonstrating that Tom Brady had anything to do with it.  And even if they DID, the penalty they doled out was hilariously, unconscionably out of whack with what the rule book calls for and for what precedent calls for.

 

[garzooma]

This is pretty bad for the NFL's argument of non-cooperation. If Wells's team already had the text messages before the first interview, there is no way he should get a second interview. 

But the dog ate my homework!

 

[dcmissle]

Nice.

So, in a vacuum, I obviously agree with you that the decisions of labor arbitrators are notoriously difficult to overcome in federal court. But, given the facts of this case and the admittedly collectively-bargained-for exchange of having Goodell as the "arbitrator," we're not exactly in labor law Kansas, anymore, are we, Toto? Does that shade your handicapping at all?

Let's take one slice of this -- TB claimed "general awareness" of the violation. There is no precedent supporting punishment for this. In fact, the applicable precedent is to the contrary: In Bountygate, the NFL went out of its way to say it was NOT punishing every player with awareness of the bounties. It was only punishing the ringleaders (Vilma's punishment was vacated, but I digress).

I do not understand how generally applicable principles of labor law, particularly against the backdrop of this precedent, support any punishment of TB. The NFL certainly will argue that Roger can do as he pleases for the good of the game -- but he makes that argument routinely, and it is rejected routinely.

To this extent, I like TB's case quite a bit. Even on a motion to vacate.

 

[OnWisc]

Hell, the deflator text could be a reference to the fact that he was hiding a ball needle in there, Colts style, and as a suggestion to hurry up and deflate the ball so he wouldn't need the jacket to hide it anymore. The very nature of the text is such that it could be interpreted so many ways that they shouldn't be interpreted at all.

Unless Goodell has some trump card that he hasn't played, or isn't 100% certain that there's a piece of evidence still out there that would utterly prove the Patriots are guilty, then I imagine he would do everything in his power to hold up as much of the punishment as possible without going to court. Without even getting into the holes in the Wells report itself, the aborted testing of the Colts balls as well as the inaccurate Mort allegations lead me to strongly believe that any revelation of emails or texts originating from the league offices over this would be an utter PR disaster for the league. Goodell may be appointing himself to hear the appeal simply out of a desire to avoid having to disseminate any internal information about how this was handled to an outside party. His reliance on the Wells report itself could be seen as an attempt by Goodell to create a credible, "independent" basis on which to base his punishment that is insulated from whatever machinations took place in the league office in the days leading up to and immediately following the AFC championship game. Kind of a "we really fucked this up, let's get an independent attorney in here who can start with a clean slate and prepare some sort of third party report that we can then use as a basis for action." Unfortunately for Goodell, he overplayed his hand with the ridiculous punishment to the extent that the independent report wasn't able to wrap things up, and the possibility seems to exist that the Patriots may take steps that would require the NFL to divulge their own corroded handling of the incident rather than allowing that to be shielded by the independent report.

EDIT: Or basically the last paragraph on page 2 of the NFLPA letter to Vincent. Being unable to rely wholly on the Wells report and having to circle back toward the NFL's own actions around the time of the incident is something I imagine Goodell wants to avoid at all costs.

 

[tims4wins]

 
Is that true? Wow.

 

[Ed Hillel]

 
Ohhh, looks like we may go to court before Roger decides.

 

[jsinger121]

 
In court? Is he going to turn over his phones and e-mail records? This isn't going to court.

 
Don't underestimate the NFLPA and Jeffrey Kessler.

 

[DJnVa]

So, no one has found any facebook pages or twitter accounts of these guys? I find that somewhat refreshing.

 

[marcos10]

Maybe they had it and didn't include it for some reason, but I wish the Pats had included the synced up screenshot of Jastremski holding the jacket when McNally texted him during the GB game. It would've helped the credibility of deflate=weight loss theory and and that these 2 chuckleheads texted meaningless banter back and forth quite often.

 
im sorry  but the first thing I thought of when I read the "jacket" text was that it was a pun on "jack it", something like "relax and rub one out" but that could just say more about me.

 

[jsinger121]

 
Page 2 of the letter

 

[MillarTime]

Oh wow. Giddyup.

 

[steveluck7]

 
Is that true? Wow.

Beetle is reading the other parts on 98.5 right now. They go into the level of punishment vs. otehr similar offenses and then the lack of evidence...
 
and there going the read point 4 momentarily

 

[jsinger121]

 
And Page 3

 

[DJnVa]

 
Is that true? Wow.

 
It was mentioned in this thread 2 days ago that this was one of the legs of his appeal.
 

 

[Kenny F'ing Powers]

 
Ohhh, looks like we may go to court before Roger decides.

 
The footnote is such a glorious slap in the face to Vincent.

 

[WayBackVazquez]

So, yeah. That.

 

[Mooch]

Wow, did the NFL actually break the CBA themselves by allowing Vincent to determine the punishment? If that's true, this thing is over if it gets to court.

Edit: clarity

 

[Harry Hooper]

 
 
"Dear Troy" and not "Dear Mr. Vincent"? This isn't real is it? The footnote is something else.

 

[jsinger121]

 
 
"Dear Troy" and not "Dear Mr. Vincent"? This isn't real is it? The footnote is something else.

 
https://nflpaweb.blob.core.windows.net/media/Default/PDFs/Media%20Resources/Brady_Appeal_Letter.pdf
 
It's legit

 

[Rico Guapo]

As the kids on the internet say these days, SHOTS FIRED.

 

[WayBackVazquez]

"Dear Troy" and not "Dear Mr. Vincent"? This isn't real is it? The footnote is something else.

Why is this a big deal? They know each other. Troy was head of the NFLPA, after all.

 

[soxhop411]

 
 

 
Page 2 of the letter

 
 

 
And Page 3

yup.. This is going to get ugly

 

[jmm57]

At the very least, you would think that RG would need to impose the penalty which would remove him from hearing the appeal?

 

[dcmissle]

 
 
"Dear Troy" and not "Dear Mr. Vincent"? This isn't real is it? The footnote is something else.

These guys know each other. It's informal, but not disrepsectful

 

[tims4wins]

 
The footnote is such a glorious slap in the face to Vincent.

Awesome

 

[Kenny F'ing Powers]

"If the commissioner doesn't appoint a neutral arbitrator, we will attempt to burn your office to the ground. Kthanxbye".

 

[pappymojo]

I continue to be astounded by the NFL's arrogance and stupidity. 

 

[TheWizard]

 

[Harry Hooper]

OK, then!
 
I do like bringing up the reality that Vincent was on site for the AFC Championship and was coordinating the in-game response and post-game investigation should disqualify him from also determining the discipline.

 

[tims4wins]

I know it sucks that our team has been dragged through the mud, but I for one am enjoying every freaking second of this. Every day is like Christmas all over again. So entertaining.

 

[Kenny F'ing Powers]

 
This is about right. The NFL fucked this thin gup so bad that there is no way Brady serves 1 minute of a suspension.
 
The draft picks, on the other hand, are such fucking garbage and because it's nearly impossible to get that punishment rectified, will stick (which is why RG did it to begin with).

 

[garzooma]

Jerry Jones weighed in; now Arthur Blank. Message -- we like you Bawb, but it's time to move on:
 

The problem with this idea, which I'll bet Kraft himself has used with fellow owners, is that when the League brought up CameraPlacementGate, they basically obliterated the "moving on": "Just put this behind you Hester Prynne, but you still have to wear that scarlet letter."  This is especially egregious considering the "more probable than not" standard -- it doesn't even have to be proven you did anything wrong.  I wonder if one of the things Kraft will be after is a change in the bylaws to explicitly prohibit the NFL from considering past issues.

 

[ivanvamp]

From the Bountygate story, this is regarding Tagliabue's ruling...
 
"to an extent, this case ties Goodell’s hands going forward. In several instances, Tagliabue argues that Goodell’s suspensions were unwarranted because, in prior cases, the NFL never punished players so severely. “The League has not previously suspended or fined  players for some of the activities in which these players participated,” Tagliabue writes,  “and has in the recent past imposed only minimal fines on NFL clubs — not players — of a mere $25,000 or less.
 
Tagliabue agrees with Goodell’s finding that former Saints defensive end Anthony Hargrove obstructed the NFL’s investigation by denying the bounty program’s existence — at the behest of his coaches. But, Tagliabue writes, “the context of previous NFL punishment for obstruction suggests that a seven-game suspension is unprecedented and unwarranted here.” The example that Tagliabue cites to back this up: the 2010 investigation into Brett Favre’s alleged sexual harassment of a New York Jets employee. “In December 2010, the NFL fined Brett Favre $50,000 — but did not suspend him — for obstruction of a League sexual harassment investigation,” he writes. “Although not entirely comparable to the present matter, this illustrates the NFL’s practice of fining, not suspending, players for serious violations of this type.”
 
From (http://keepingscore.blogs.time.com/2012/12/12/reading-between-the-lines-of-the-bountygate-ruling/)
 
So Tagliabue is saying that a penalty that is out of line with other penalties for the same infraction is totally unacceptable.  I find it hard to believe that Goodell would go right back to doing the same thing he did that Tagliabue overruled him on and chastised him for, not that long ago.
 
But it is Goodell, so…...
 
I hope the next arbiter/judge smacks Goodell down just as hard.

 

[WayBackVazquez]

It's a pretty formal note, however. I'm sure referring to him as "Troy" is intentional.

Dude, this is standard. When I send a discovery meet-and-confer letter or some such, I don't refer to opposing counsel as Mr. when we've been litigating the case for a year.

And Vincent's letter to Brady was addressed to "Tom."

 

[Harry Hooper]

Kraft to another owner: Will you surrender your first-round pick too? No? Then shut up.

 

[Leather]

That's the best piece of legal work produced so far in this entire fiasco.
 
Finally.  Like a breath of fresh air in a fart-infused closet.

 

[Bongorific]

It's interesting that the NFLPA's letter references the Patriots in addition to Brady when discussing a possible sting. Perhaps this is s coordinated strategy between Patriots counsel, Brady's counsel, and NFLPA counsel. It may be difficult for the Patriots to appeal team sanctions, but if Brady's legal action indirectly demonstrates a possible sting or at least bias against the team, the league will have to vacate the team punishment.