#DFG: Canceling the Noise

[joe dokes]

How can the NFL make a truly back-door offer to Brady offering a reduced suspension?  If it's really off the books, what's to stop Brady from "accepting" behind the scenes, getting the reduced penalty, and taking the NFL to court anyways?  The NFL wouldn't even be able to call him on it publicly.
 
With the railroading Brady's gotten, why would the NFL think he'll play nice with them?

 
Nothing would stop Brady, but the NFL could call him on it.  I doubt that "backchannel" would mean "no evidence whatsoever of its existence."  If he truly agreed not to sue, and the NFL held up its end, the agreement would get the court case dismissed pretty quickly.

 

[Gino]

 
That is true. I like his chances and I personally would want him to risk serving the 4 just to try and shove it in Roger's face but I guess I see the argument.
 
But I don't even think this would be an option, at least publicly. Would we ever even hear about a conditional reduction like this? I don't think we'll here on ESPN "Suspension reduced to 2 games contingent on Brady not fighting anymore" Wouldn't that be just as bad PR for Roger? Isn't the next logical question by everyone "why doesn't Roger want him to fight?" If this were to happen behind the scenes I have to think Yee would run not walk to the media saying "Roger wants us to drop the appeal he must be hiding something"

Isn't a Federal Judge also going to look at the penalty imposed?  Favre got $50,000 for not cooperating.  The NFL fine for tampering is $25,000 fine.  So even if there is some culpability it's likely not to result in a 4 game suspension

 

[MarcSullivaFan]

The NFL cannot deal directly with Brady. It's an unfair labor practice under the National Labor Relations Act and potentially a violation of the rules of professional conduct. They are going through the union and his lawyers or not at all.

 

[simplyeric]

Throughout this whole debacle, every announcement/decision/report, etc. has turned out worse than I hoped or expected.  To that end, I predict Rog will reduce the suspension to 2 games and Brady will accept it.

 
So we're looking at a suspension of 6 games, and Brady retires?

 

[Papelbon's Poutine]

I've got a couple of logistical legal questions.
 
A logistical question around the suit, if he does indeed sue is there any chance the case is finalized during the season?  Reason being, say the suspension isnt changed, Brady sues, they get the court ruling in mid November and they rule against Brady, then I'm assuming he would have to immediately serve his suspension and that really blows for this team.  Now I'm not sure if Brady would even go for this, but would it be possible for him to sue and serve his suspension at the start of the season and ultimately all he would get in court would possibly be the exoneration but it doesnt completely screw up our season in Nov/Dec.
 
An alternative question, is there anyway that Kessler can drag this out so that the ruling wont ever come down during the season.  Take my example above if they get the ruling in November, is there any way for him to appeal thus delaying the suspension and then in March they could just drop it and accept the ruling?

 
Wow, that's certainly a new one. 
 
Completely ignoring that the first four games count just the same as the last four games in the standings, if he's going to serve the suspension, what the hell is the point of taking it to court? 

 

[simplyeric]

Attention span?  This has been going on since January.  It's now July 9th.  It's gone on almost 6 months.

 
Almost as long as the NFL season!  I assume you give up on the season in December, and just want Goodell to crown a champion without going through any further process of "playoffs" and such.

 

[TheoShmeo]

I don't see the purpose in dumping on RedOctober for making an off handed remark about essentially being sick, tired and exasperated by this ridiculous topic.
 
RedOctober needs no introduction around here.  He's clearly a passionate football/Pats fan.  He posts in this forum frequently.  This topic sucks ass.  It's totally insane.  The NFL managed to turn the world upside down and make one of the better guys in the NFL an object of ridicule for other players and fans.  It's a joke.  Who hasn't had moments of saying to themselves or maybe even out loud "enough of this already, I almost don't care"?  To turn that into snark about him not focusing on the season or giving up in December...come on already.  

 

[geoduck no quahog]

I agree with everyone who says the most important thing is the NFLPA and the Agreement.
 
A union can't sit back and allow its members to be punished/penalized for either un-proven acts and/or exercising their rights. While the NFL had every right to investigate and rule the way they did, the union has every right to stand up to unfair labor practices. 
 
In my opinion, Brady couldn't care less about what the NFL did to Patriot's ownership - and I even doubt he's that fussed about his "reputation", but as a member of a labor fraternity he has to stand up against arbitrary penalties. This is for the next player who refuses to hand over personal information without a legal order and the next player who gets suspended with a pay cut based on an arbitrary and unfair ruling. I'm surprised more players aren't rallying to Brady's side.

 

[ivanvamp]

 
Which means the NFL won. They drug this shit out so far that you are willing to accept the penalty.
 
So, congrats. You buckled.

I'm just the opposite. The longer this goes the more I want Brady to fight to the death.

This whole thing should have been wrapped up in about two days, once they learned that the actual measurements were right in line with the laws of nature. That it's gone this long in every phase is just more evidence of a total railroading of Brady.

 

[wutang112878]

 
Wow, that's certainly a new one. 
 
Completely ignoring that the first four games count just the same as the last four games in the standings, if he's going to serve the suspension, what the hell is the point of taking it to court? 

 
The point would be clearing his name and having an actual unbiased court rule that there wasnt enough evidence to conclude that he intentionally altered the footballs.
 
As far as the games counting, yes a win is a win.  But think about our record in the first 4 games vs the last 4 games recently, in 2 of the last 3 years (14 + 12) we went 2 and 2 in the first 4 games and in the last 3 years we've gone 3 and 1 in the last 4.  Bill always has his teams playing the best at the end of the season and early on the team is its common that the team is in flux at a certain position or grouping, which is what will probably happen with our secondary this season.  The way I see it, we're kind of accustomed to just trying to get some wins and build the team early in the season, and by the end its about finishing strong and playoff seeding which is when I dont want to see Jimmy G playing.

 

[Papelbon's Poutine]

 
The point would be clearing his name and having an actual unbiased court rule that there wasnt enough evidence to conclude that he intentionally altered the footballs.
 
As far as the games counting, yes a win is a win.  But think about our record in the first 4 games vs the last 4 games recently, in 2 of the last 3 years (14 + 12) we went 2 and 2 in the first 4 games and in the last 3 years we've gone 3 and 1 in the last 4.  Bill always has his teams playing the best at the end of the season and early on the team is its common that the team is in flux at a certain position or grouping, which is what will probably happen with our secondary this season.  The way I see it, we're kind of accustomed to just trying to get some wins and build the team early in the season, and by the end its about finishing strong and playoff seeding which is when I dont want to see Jimmy G playing.

 
To your first point, I would argue that if he's already served the suspension, that's a tacit admission of guilt to 95% of the public outside five states. So at that point, he's suing I guess to sleep better at night? Missing four games for the suspension eliminates any chance of clearing his name in any real way. (Which is to say nothing of what that means for precedent regarding how the league handles similar situations going forward.)
 
To your second, I would argue that if the team traditionally struggles early in the season and is in a groove by the time the season is winding down, I'd want my best player there when he makes the most impact - early. If they don't have Tom Brady there last season, 2-2 could easily be 1-3 or 0-4. Which at the very least means no home field advantage. There's easy the possibility that if he had to miss 4 games at the end, at least one if not more mean literally nothing as they've already clinched their seed. 

 

[dcmissle]

Courts are not in the business of clearing names.  That can be the result of a ruling, but it's not the judge's primary concern, nor should it be.
 
If TB were to "voluntarily" serve 4 games, he'd be telling the court he expects to lose.  Which in turn would probably substantially increase the odds of losing. 
 
Were not even at training camp yet, and fans are going "wobbly".  This has taken a Felgerian turn -- Kraft was excoriated for not fighting a battle he had no chance of winning; TB will be accused of being selfish for fighting a battle he stands a rather good chance of winning.

 

[djbayko]

The NFL cannot deal directly with Brady. It's an unfair labor practice under the National Labor Relations Act and potentially a violation of the rules of professional conduct. They are going through the union and his lawyers or not at all.

Not only this, but it's a huge risk to offer such a deal to Brady (reduced suspension for promise not to sue). If Brady's team is hell bent on accepting no suspension, then they make sure this offer is somehow reported to the public. Intermediary or none - let Goodell deny it on camera after the report is already out there. It makes the NFL look weak...and evil.

 

[Myt1]

Average Reds, I think the contingent offer gets conveyed privately and likely not directly. 
 
To me, the time to discuss that offer was between the hearing and the ruling.  In other words, now.  That's the time for RG to be able to say that he considered it all, and he's prepared to reduce it to X but only if Tom agrees not to fight. 
 
To be clear, this is not something that I think would be done publicly and "officially".  And if a deal got done, it would be presented as an agreed solution...there would be no discussion of how the offer was first presented to Tom.  The result would be a reduction to X and no more litigation, but we would not hear that Tom could have only had that deal if he so agreed.  At least, not until that gets leaked down the road.

I don't think there's any such thing as "privately" at this point. If the offer gets conveyed, in any form, especially by Kraft, one of Goodell's employers, I'm using it to the full extent that I can, if I'm Kessler. The rule on inadmissibility of settlement offers isn't so strong that he can't make some hay out of it, and making the offer privately is extremely bad optics for the NFL, especially where their credibility is on the line.

Goodell's an idiot, but that would be the only reason I could see for such a tactic on his part.

 

[TheoShmeo]

DC, I could care less about the Felgerian style narrative.  We are already way into the silly zone regarding Tom.  Those who hate him or the Patriots, or want to belittle them and minimize their accomplishments, already have sufficient material and will be loaded for bear no matter how this turns out.  We can all easily invent the douche bag narrative no matter what the resolution is.  There's no need to tick through the various iterations of Pats invective as there is no result short of Goodell admitting this was all a sham -- which his never going to happen -- that will prevent the Haters from spinning their nonsense when this is over.
 
To me, it's only about minimizing the amount of games Tom has to serve and removing the distraction/side show.  I'd rather he agreed to one or two games and moved on but I'm inherently a de-risker.  I've seen enough crusades become sour and take too much time to not prefer settlement.  But if he wants to fight to the bitter end, that's his right and a large part of me will enjoy that quest immensely.  He deserves to be cleared of this nonsense and it seems to me that he has a legitimate shot of convincing a court that the penalties imposed on him were insane.  The only place where I see the NFL with any moral authority is in the non-cooperation realm but when one considers Favre's relative penalty for the same, the joke of this becomes clear. 
 
In short, fans and mediots who accuse Tom of being selfish are to be ignored.  Along with the trolls and fools like Emmanuel Sanders who question the SB win.  Just more noise. 

 

[Papelbon's Poutine]

DC, I could care less about the Felgerian style narrative.  We are already way into the silly zone regarding Tom.  Those who hate him or the Patriots, or want to belittle them and minimize their accomplishments, already have sufficient material and will be loaded for bear no matter how this turns out.  We can all easily invent the douche bag narrative no matter what the resolution is.  There's no need to tick through the various iterations of Pats invective as there is no result short of Goodell admitting this was all a sham -- which his never going to happen -- that will prevent the Haters from spinning their nonsense when this is over.
 
To me, it's only about minimizing the amount of games Tom has to serve and removing the distraction/side show.  I'd rather he agreed to one or two games and moved on but I'm inherently a de-risker.  I've seen enough crusades become sour and take too much time to not prefer settlement.  But if he wants to fight to the bitter end, that's his right and a large part of me will enjoy that quest immensely.  He deserves to be cleared of this nonsense and it seems to me that he has a legitimate shot of convincing a court that the penalties imposed on him were insane.  The only place where I see the NFL with any moral authority is in the non-cooperation realm but when one considers Favre's relative penalty for the same, the joke of this becomes clear. 
 
In short, fans and mediots who accuse Tom of being selfish are to be ignored.  Along with the trolls and fools like Emmanuel Sanders who question the SB win.  Just more noise. 

 
For Tom or for us? Because I seriously doubt it is impacting Tom's preparation to any degree that will show up on the field. 

 

[TheoShmeo]

Myt1, I disagree in just abouty every way possible.
 
Informal offers and trial balloons get passed on, directly and indirectly, all the time.  If Goodell wants to go in this direction, he can convey it in such a way that does not stick to him unless it has legs, in which case it sticking to him is not a problem.  That's an every day occurrence. 
 
I could see Kraft talking to Brady privately and saying that if Tom is willing to accept 1-2 games, this can go away.  If Tom says NFW, then it goes nowhere.  Do you think Tom is going to make a stink and sell out Kraft in that scenario? 
 
I could see it being conveyed in lots of other ways, too.
 
And what's this about the admissibility of settlement offers?  I have never seen a settlement offer get effectively and materially used against one side or another.  Have you?  Most judges would be offended by the notion.  In fact, I have seen several judges get visibly pissed off -- both on the bench and in chambers -- when a lawyer stared to infer that the existence of a settlement offer meant something.  "I don't want to hear about that!"  That doesn't mean that lawyers don't try to color the judge on some level by letting a settlement offer slip.  They do.  But I've never seen that accomplish much of anything.  Maybe your experiences are different than mine.
 
I do agree that Goodell's an idiot but all you have offered is the conclusion is that it's a bad tactic and this bit about a settlement overture being used against Goodell.  Is there anything else?  Do you disagree that Goodell would rather not reduce the penalty and then see Brady appeal? 

 

[TheoShmeo]

PP, I only mean for Tom.  How it impacts Joe Fan is not my concern.
 
You may be right that it will not affect him.  On the other hand, if this thing continues, he will spend time preparing for hearings and talking to lawyers.  Not a small amount of time.  And that is time that he cannot get back and that will not be dedicated to football, sleep or his family life.  What the impact of that is or will be, I don't know.  But I think it's a mistake to assume that it's no impact.  I also think the mental strain of having to think about these issues and answer questions about his legacy and all the related nonsense from the media is going to be draining on some level.

 

[Papelbon's Poutine]

Myt1, I disagree in just abouty every way possible.
 
Informal offers and trial balloons get passed on, directly and indirectly, all the time.  If Goodell wants to go in this direction, he can convey it in such a way that does not stick to him unless it has legs, in which case it sticking to him is not a problem.  That's an every day occurrence. 
 
I could see Kraft talking to Brady privately and saying that if Tom is willing to accept 1-2 games, this can go away.  If Tom says NFW, then it goes nowhere.  Do you think Tom is going to make a stink and sell out Kraft in that scenario? 
 
I could see it being conveyed in lots of other ways, too.
 
And what's this about the admissibility of settlement offers?  I have never seen a settlement offer get effectively and materially used against one side or another.  Have you?  Most judges would be offended by the notion.  In fact, I have seen several judges get visibly pissed off -- both on the bench and in chambers -- when a lawyer stated to infer that the existence of a settlement offer meant something.  "I don't want to hear about that!"  That doesn't mean that lawyers don't try to color the judge on some level by letting a settlement offer slip.  They do.  But I've never seen that accomplish much of anything.  Maybe your experiences are different than mine.
 
I do agree that Goodell's an idiot but all you have offered is the conclusion is that it's a bad tactic and this bit about a settlement overture being used against Goodell.  Is there anything else?  Do you disagree that Goodell would rather not reduce the penalty and then see Brady appeal? 

 
As Myt1 noted, you are completely ignoring the optics influencing all this. Citing the practices of everyday lawyers and lawsuits is really not adding much because they aren't relevant here. Pretty much every action Goodell has taken so far has been about preserving his image of power. 
 

PP, I only mean for Tom.  How it impacts Joe Fan is not my concern.
 
You may be right that it will not affect him.  On the other hand, if this thing continues, he will spend time preparing for hearings and talking to lawyers.  Not a small amount of time.  And that is time that he cannot get back and that will not be dedicated to football, sleep or his family life.  What the impact of that is or will be, I don't know.  But I think it's a mistake to assume that it's no impact.  I also think the mental strain of having to think about these issues and answer questions about his legacy and all the related nonsense from the NFL brain trust is going to be draining on some level.

 
No he really won't spend much time doing either. His lawyers will be doing the work. Tom or his agent will take a phone call now and then, but it's not like he's going to be at the courthouse everyday waiting to testify. The lawsuit won't be about the actual specifics of the situation of PSI levels, it will be about the procedures of the league with regard to union labor. Tom has done his time being interviewed or deposed or testifying. At this point, it's literally in the lawyers hands. 

 

[TheoShmeo]

To your first point, what is relevant is that it's quite possible for Goodell to message the offer in such a way that doesn't stick to him.  We're not talking about a formal offer that has to blow up in Goodell's face.  Or that he cannot plausibly deny.  This is not a new tactic in professional sports; it's how teams tamper without clearly violating the rules all the time.  This is a different context than that but the idea is the same.  Float the idea indirectly and pursue it if it has legs.
 
As to Tom's distraction level, if there is a substantive hearing on this lawsuit, Tom may have to be there.  He may want to be there.  It may be bad optics for him not to be there.  He may need to testify again.  That he has testified in connection with the Goodell hearing does not mean he will not have to provide new, live testimony and more depositions before a new tribunal.  Your notion that he's all done is very likely incorrect.  If this goes to litigation, I would be shocked if more was not required of Tom.   

 

[Myt1]

Myt1, I disagree in just abouty every way possible.
 
Informal offers and trial balloons get passed on, directly and indirectly, all the time.  If Goodell wants to go in this direction, he can convey it in such a way that does not stick to him unless it has legs, in which case it sticking to him is not a problem.  That's an every day occurrence. 
 
I could see Kraft talking to Brady privately and saying that if Tom is willing to accept 1-2 games, this can go away.  If Tom says NFW, then it goes nowhere.  Do you think Tom is going to make a stink and sell out Kraft in that scenario? 

Why do you think that would be selling Kraft out?
 

I could see it being conveyed in lots of other ways, too.

Like, how?
 

And what's this about the admissibility of settlement offers?  I have never seen a settlement offer get effectively and materially used against one side or another.  Have you?  Most judges would be offended by the notion.  In fact, I have seen several judges get visibly pissed off -- both on the bench and in chambers -- when a lawyer stated to infer that the existence of a settlement offer meant something.  "I don't want to hear about that!"  That doesn't mean that lawyers don't try to color the judge on some level by letting a settlement offer slip.  They do.  But I've never seen that accomplish much of anything.  Maybe your experiences are different than mine.

I'm not talking about letting something slip. Like most rules of evidence, the prohibition against the admissibility of settlement offers is narrow in scope. They can't be offered to prove liability, amount of damages, or to impeach by contradiction. They can be used for any other reason, like to show bias or motive.
 

I do agree that Goodell's an idiot but all you have offered is the conclusion is that it's a bad tactic and this bit about a settlement overture being used against Goodell.  Is there anything else?  Do you disagree that Goodell would rather not reduce the penalty and then see Brady appeal? 

There are too many negatives for me to understand your question.

Goodell has gone forward and lost in federal court against litigants who were in stronger legal positions than Brady. I don't see any reason to believe that he's particularly worried about that happening. I think he recognizes that Brady is likely to challenge any suspension at all in Court, that an offer to reduce the games as a quid pro quo weakens his hand, and will likely either not reduce the games at all or will do so unilaterally, knowing that Court is next.

Put it this way, if you're so convinced that Goodell has nothing to worry about by making the offer, and that it would be utterly inadmissible, why would he have to have Kraft make it "privately" or any any of the lots of other ways? Strictly to avoid it getting leaked on NFL letterhead? If you don't care about what Joe Fan thinks, why does this matter?

Basically, if this can't hurt Goodell, why all the cloak and dagger nonsense?

 

[Myt1]

If you gave the order that Santiago wasn't to be touched, and your orders are always followed, then why would Santiago be in danger? Why would it be necessary to transfer him off the base?

 

[TheoShmeo]

Myt1, Kraft and Brady have what appears to be a warm, personal relationship.  Let's assume that it's real even if they both may play it up for the cameras to some extent.  If Goodell made it clear to Kraft that he would reduce the penalty but only if Tom did not go to Court, and Kraft in turn made that clear to Tom, I just don't see Tom doing something with the media that would make Kraft look bad.  I think telling the media that Kraft was being used as Goodell's errand boy would make him Kraft look bad.
 
Other ways of conveying the offer?  I'm sure we could all come up with multiple paths.  
 
An informal, hypothetical conversation between Goodell's lawyers and Kessler.  "We're not making this offer but what about..."   "This is totally off the record and Goodell hasn't even authorized it, but I will work to achieve it on my end if you think it could fly."  
 
Maybe someone in the NFL office knows someone close to Tom well.
 
I could offer other ways but it all comes back to the same thing:  A trial balloon that is not a formal settlement offer.
 
As to your last question/point, I think that if Goodell thinks the settlement initiative is going nowhere, the best course for him from a PR perspective is to just continue the abject lies.  That way he gets to uphold the penalty, look tough, make the other owners happy and make the fans of every other team happy.  It's the safest course of action that does not end this mess.
 
"Nothing we heard from Mr. Brady or the NFLPA shakes our confidence in the fine work that Mr. Wells did.  We listened carefully but in the end, we believe the penalties imposed were justified given the serious nature of the allegations and the importance in maintaining the integrity of the game.  If we have to err, we will err on the side of maintaining that balance.  In the end, we asked for new evidence and we did not get it.  The sentence stands."
 
Who in the NFL world other than Pats fans and Sally Jenkins is not going to wet their pants with glee over that kind of statement?

 

[Myt1]

Why does Kraft look bad in your scenario?

I think you're generally contradicting yourself when moving between the two issues.

 

[mwonow]

If indeed Brady is 100% innocent (which I believe), and if Goodell has some idea that the whole investigation was botched by the NFL and Wells, the power that Brady has in going to the public with his story has to weigh into this full equation given that the P.R. is all that Goodell cares about. I think everyone can agree that this entire thing from the start has been about Goodell restoring credibility in the public's eye ... if/when Brady starts talking, the media outlets will pay very close attention. Half or more will continue vilifying him as a cheat, but at some point I have to believe the general sports media outside of ESPN (a la Sally Jenkins) will start capturing the imagination of the general news outlets beyond that aren't in the tank for the NFL. Goodell has something real to lose there that seems to me is more than losing in federal court, which feels like a foregone conclusion. If Scheffer's sources are correct and Brady came out as very genuine and presuming Goodell paid attention and Brady was making sense to him .... what's it worth to Goodell for Brady NOT to sit on a couch with an Oprah-type and personally explain his side of the story, point by point? That to me is the biggest piece of ammunition that Brady has that Goodell will care about.

 
I know this is like, not legal and stuff, but I thought it was interesting anyway - from the Toronto Sun on Monday, "Three key areas where Deflante-gate report is blinding us with science."
 
Okay, that's not much of a title, but it's a good piece, looking at the timing of the measurements, the garbage bags that kept the Colts' balls dry, and the nonsense embedded in the question "why deflate a half pound of air?" I especially liked this quote: "Doesn’t Goodell realize he and the NFL might well be making this vital stand on the wrong side of physics? And logic? And history?"
 
Is there still a good-guy list, and if so, can Kryk be added?

 

[TheoShmeo]

MYT1, I don't want to overstate the Kraft point but I don't see him looking great if he is being used to convey offers by Goodell.  I think it arguably diminishes him to be seen as an errand boy for an informal offer.  And however you quantify it, I just don't see Tom Brady publicizing a private conversation he had with Bob Kraft.
 
But I see this as a huge side point.  The main point is that I believe that Goodell is either going to get to an agreed reduction with no litigation from Brady OR uphold the suspension.
 
You think that the process of getting to the former exposes Goodell from a PR perspective or in front of the Court if the effort in that direction fails, and I disagree.  I disagree because I don't think parties look all that bad in front of Courts for trying to settle and I note that most judges both appreciate settlement efforts and studiously avoid being colored by them. 

 

[Myt1]

So why not just make a formal settlement offer?

 

[TheoShmeo]

I don't think doing so would be necessarily the wrong approach.  To the contrary, I think there are some good reasons to do it.  "I tried to resolved this consensually and constructively, but Mr. Brady and the NFLPA were intractable."  That has some appeal.  It allows Goodell to look statesman like.
 
On the other hand, if, as I suspect, Tom is going to say NFW to ANY suspension and/or is not going to agree to any admission of culpability (something Goodell probably also needs as part of a deal), then I think the cleaner and better approach from a PR perspective is a statement along the lines I wrote above.  It's consistent.  It will be viewed positively by more people.  Goodell is all about counting heads.  And it has the benefit of completely upholding the $5 mm Wells Report.  I also think Goodell would prefer not to risk looking weak in front of a court or in the eyes of the public by having made a settlement offer.  (Not that I agree with Goodell...but that's my guess on how he is approaching this.)

 

[dcmissle]

Because he fancies himself a neutral, as fantastic as that sounds.

 

[Myt1]

Theo, I think you just pretty much agreed with my post that you said you disagreed with in every way, didn't you?

 

[TheoShmeo]

Nope.
 
I think the settlement offer will be or has already been made to Brady through intermediaries.  Kraft might have been the vehicle though that is just one option.  If Kraft was the vehicle, I don't see Tom doing anything to embarrass him. 
 
I don't think making the offer indirectly exposes Goodell, especially if it was done the right way (which I assume it was).  
 
I think there are good reasons to proceed in this way.  There's a CHANCE that it works, even if it is a small chance.  And if it doesn't, the penalty is just upheld and everyone just moves on to litigation (which is what I suspect will happen). 
 
And I don't think having made the offer will be used in Court to weaken Goodell's position. 
 
That I think that Goodell could just proceed directly doesn't change any of the above.

 

[amarshal2]

Nope.
 
I think the settlement offer will be or has already been made to Brady through intermediaries.  Kraft might have been the vehicle though that is just one option.  If Kraft was the vehicle, I don't see Tom doing anything to embarrass him. 
 
I don't think making the offer indirectly exposes Goodell, especially if it was done the right way (which I assume it was).  
 
I think there are good reasons to proceed in this way.  There's a CHANCE that it works, even if it is a small chance.  And if it doesn't, the penalty is just upheld and everyone just moves on to litigation (which is what I suspect will happen). 
 
And I don't think having made the offer will be used in Court to weaken Goodell's position. 
 
That I think that Goodell could just proceed directly doesn't change any of the above.

 
You're just making this up, right?  I've thought so all along but you're now quintupling down on a fan theory with no obvious evidence that 95% of this board thinks is unlikely.  So it's time to ask.

 

[dcmissle]

I'd use it against him.  Citing evidence rules is cute because a judge will preside over all aspects of the next stage.  Admissibility is irrelevant.  I'd just tell him, and you cannot un-ring that bell.  A judge cannot cite it; he can be influenced by it.  This whole process is a sham.
 
As for Kraft looking bad, who cares?  He looks preposterous on that Sun Valley stroll having been castrated by the Frankenstein monster he more than any other single owner created.

 

[Myt1]

I love it when you get righteous.

 

[Papelbon's Poutine]

Nope.
 
I think the settlement offer will be or has already been made to Brady through intermediaries.  Kraft might have been the vehicle though that is just one option.  If Kraft was the vehicle, I don't see Tom doing anything to embarrass him. 
 
I don't think making the offer indirectly exposes Goodell, especially if it was done the right way (which I assume it was).  
 
I think there are good reasons to proceed in this way.  There's a CHANCE that it works, even if it is a small chance.  And if it doesn't, the penalty is just upheld and everyone just moves on to litigation (which is what I suspect will happen). 
 
And I don't think having made the offer will be used in Court to weaken Goodell's position. 
 
That I think that Goodell could just proceed directly doesn't change any of the above.

If he made or makes the offer its getting out in the media. He of all people should know that. After that there's no way to detach himself from the negative spin of it. Whether he cares or not is a different story, but it inherently makes him, his stance and his rulings look questionable if not completely weak, even more so than they already do. He's already rebounded to go from being too weak on punishment to to harsh and the only way he's managed to keep even a little clean is to allow a federal court to come over the top and then ignore it all like it never happened. Brokering plea bargains has very little upside for him.

 

[dcmissle]

Some people are having difficulty with the fact that this is a high stakes game involving two sides playing with house money.  Goodell, sadly, has already won with the draft choices he confiscated; his reputational risk is nonexistent because he already has taken quite the hit, will never be tarnished further by going hard against the Patriots, and the NFL's indifference to courtroom losses.
 
Brady has everything to gain, and nothing to lose.  That's been the case since Vincent signed the letter.
 
An amusing aspect -- not that Kessler needs much help -- is that the NFL apparently failed in its effort reported here to disqualify top tier firms.  This fellow joined team Brady, and his firm has as formidable a group of thinkers and brief writers as you'll find in this country --
 
http://www.gibsondunn.com/lawyers/atulumello

 

[DegenerateSoxFan]

No analysis necessary here. Goodell is not changing a thing. Brady will take it to court. And win.

Book it.

 

[Average Reds]

Nope.
 
I think the settlement offer will be or has already been made to Brady through intermediaries.  Kraft might have been the vehicle though that is just one option.  If Kraft was the vehicle, I don't see Tom doing anything to embarrass him. 
 
I don't think making the offer indirectly exposes Goodell, especially if it was done the right way (which I assume it was).  
 
I think there are good reasons to proceed in this way.  There's a CHANCE that it works, even if it is a small chance.  And if it doesn't, the penalty is just upheld and everyone just moves on to litigation (which is what I suspect will happen). 
 
And I don't think having made the offer will be used in Court to weaken Goodell's position. 
 
That I think that Goodell could just proceed directly doesn't change any of the above.

This entire scenario is a fantasy.

Even if Brady were inclined to accept an offer from Goodell, he can't even respond to an informal offer communicates through Robert Kraft. I mean, not to put too fine a point on it, but Brady just went through a process where Ted Wells, working on behalf of Goodell, twisted facts and placed the blame for an event that probably didn't even happen on Brady and Goodell promptly blessed the process with no questions. That's the guy you think Brady should trust to keep his word? I think not.

Here's what I KNOW would happen in this scenario. Jeffrey Kessler will inform counsel
for the commissioner that Brady can't even consider any offer unless it is in writing and presented through formal channels.

If Goodell won't do that, there is no chance of any deal. And I don't think Goodell will do that.

 

[Average Reds]

Some people are having difficulty with the fact that this is a high stakes game involving two sides playing with house money.  Goodell, sadly, has already won with the draft choices he confiscated; his reputational risk is nonexistent because he already has taken quite the hit, will never be tarnished further by going hard against the Patriots, and the NFL's indifference to courtroom losses.
 
Brady has everything to gain, and nothing to lose.  That's been the case since Vincent signed the letter.
 
An amusing aspect -- not that Kessler needs much help -- is that the NFL apparently failed in its effort reported here to disqualify top tier firms.  This fellow joined team Brady, and his firm has as formidable a group of thinkers and brief writers as you'll find in this country --
 
http://www.gibsondunn.com/lawyers/atulumello

This is what I have been trying to get at. Brady has little to lose by continuing on (unless the suspension is vacated) and for him to settle is "letting Goodell off the hook" not in a personal sense, but because he has no reason to settle.

Brady has already made enough money that the amount he might save through a settlement is meaningless. He's not going to miss time this year. (So any monetary penalty is delayed in any case.) His case is solid. And (presumably) he's innocent. Why would he not fight an unjust penalty?

 

[TheoShmeo]

AMarshal, I'm speculating.  This is what I think happened or will happen.  But pure speculation.  I don't care if you agree, 95% disagree or I am wrong in the end.  To me, it's the most logical way for Goodell to proceed and it's what I would do in his shoes.  I would not want to reduce the penalty and then have Brady spurn me.  But I have no knowledge, no friends with knowledge and no friends who are wrong with knowledge!    
 
DC, it is of course true that some judges will not be upset if the settlement talks bell gets rung.  But I don't know about you, but I have seen some get really annoyed at that tactic.  Others just shut it down before it gets rolling.  And the notion that Goodell tried to settle this is something (a) that many judges would appreciate and (b) would not be perceived by many judges as a desperate act because, as we know, settlement overtures happen all the time in the real world.  Settlement efforts are viewed by many judges as an intelligent thing to pursue because, as one Judge I have spent considerable time with is wont to say, "judges are like blunt instruments whose decision making cannot be controlled."  I fail to see the great harm in a Judge knowing that Goodell tried to settle.  At the same time, I think from a PR -- as opposed to a judicial -- perspective that Goodell would rather not have that leaked.
 
PP, I don't agree that an indirect offer of that sort is inevitably certain regardless of how you strongly you assert that.  Plausible deniability is a powerful weapon.  Goodell can gauge Brady's interest level without his finger prints being on the "offer."  That said, you raise some good points and yeah, it's possible that Goodell will never try to settle at any level because he has more to gain by being consistently tough on Brady.  In my view, the only possible outcomes are no change/4 games and a reduced penalty/no more litigation.  But in fairness, it may be that there is really only one possible outcome.

 

[Papelbon's Poutine]

 
PP, I don't agree that an indirect offer of that sort is inevitably certain regardless of how you strongly you assert that.  Plausible deniability is a powerful weapon.  Goodell can gauge Brady's interest level without his finger prints being on the "offer."  That said, you raise some good points and yeah, it's possible that Goodell will never try to settle at any level because he has more to gain by being consistently tough on Brady.  In my view, the only possible outcomes are no change/4 games and a reduced penalty/no more litigation.  But in fairness, it may be that there is really only one possible outcome.

 
And yet, despite Brady holding that and multiple very high priced reports supporting it, here we are. It means crap in the public eye. 

 

[TheoShmeo]

How can you say that Brady has nothing to lose, DC?  If he litigates, he can lose in court and be stuck with 4 games.  Not that I expect that to happen but do you think there is NO possibility there?  If Brady is offered the chance to reduce the sentence to, say, one game, then he gets the opportunity to de-risk the 4 game penalty and move on.  It's not a money thing per se but putting this behind him has value.
 
In the end, Tom may very well say "F it, I will not accept even a one second penalty, I did nothing wrong here.  I am willing to take the risk."  But different people perceive risk differently and some people place more value on putting things behind them than others.  You're making this seem as if there is no other way that Tom could possibly be viewing this.
 
Average Reds, you can call it fantasy and it certainly IS speculation.  But why is it hard to believe that someone could "trial balloon" the idea to Brady or his side?  If Brady/the NFLPA indicates a willingness to explore it, that gets back through the intermediary to Goodell and, in turn, the lawyers start talking, and that leads to a negotiated settlement.  While that path -- starting with intermediaries -- is not every case, it's hardly splitting the atom to proceed that way. 

 

[Average Reds]

Its a fantasy because Brady can't even respond to an offer that isn't in writing from counsel.

Oh, and there's also the issue the an informal offer communicated directly to Brady would be a violation of federal labor law, as pointed out earlier today.

 

[TheoShmeo]

Sorry, but that's just way too technical, AR. 
 
True, there is nothing formal for Brady to respond to.  But so what?  That doesn't prevent Goodell from feeling his interest out before making a formal offer. 
 
If Kraft says to Brady (and substitute anyone else if you don't like the Kraft example), "Tom, there's no way that Goodell will reduce this if you are going to fight in Court after getting the reduction.  He takes crap from the other owners for reducing it and then has to fight you?  Not going to happen.  But I am pretty sure that if you accepted a one game penalty, that Goodell would go to that and you could be done with this BS."
 
Yes, Tom can't formally respond to that but if Tom tells Kraft that he's interested, Kraft can relay that to the NFL/Goodell and then perhaps the offer gets made after the lawyers get involved.  
 
Now I'm sure there is more to it than that.  But I don't think that the process going along those lines is fantasy.  I think that IF Goodell is of a mind to reduce the penalty, that he would want to proceed directionally in that way.
 
Again, it is quite possible that Goodell is dug in and will just uphold the 4 games.  But if he wants to settle or at least try to do that, I think he does something like this as a first step.
 
There have been times in my practice when I have gone to opposing counsel with a comment along the lines of "I'm not going to even begin to proceed with negotiations unless something like X could be of interest."  That could lead to a "yeah, something like that could work," at which point an offer might get made by my side.  Or it may lead to a "no way. no how," which could in turn lead to no offer being made or my side to sweeten its opening bid.  Or it's just information that gets factored in for a later negotiation.  .
 
But this kind of pre-negotiation, meta negotiation talk is not remotely unheard of and the fact that there is no formal offer that could be accepted by Brady is a total red herring.     
 
As to your second point, I don't know if you have the law right on that.  I am hardly a labor lawyer.  But if we assume you are right, I would assume there are work arounds and that Goodell's representative (Kraft or whoever else) could message that to someone broadly on Team Brady. 

 

[Average Reds]

It's not "too technical" just because you say it is.

Informal offers between lawyers are one thing. But what you are describing is a back channel negotiation where one of the principles is using a third party to communicate directly to the other principle.

No lawyer would allow Brady to even respond to an informal suggestion from Kraft, for the simple reason that the NFL has demonstrated bad faith throughout the process. And no matter what Brady responds, the other side can use it to paint Brady as either guilty or unreasonable and Brady will be left without recourse. Which is why you insist that any offer follow the law regarding labor practices (which governs here) and go through counsel.

We can stop now, because we're not going to move each other off of our positions.

 

[TheoShmeo]

I will reply nevertheless.
 
It's too technical because there is no rule of law or negotiation protocol that I am aware of that prevents a trial balloon from being floated through non-lawyers or requires that settlement offers must be made by lawyers in a way that could be accepted as a legal matter.  Someone connected with Goodell can start the settlement process or float something to someone connected with Brady.  If it has legs, it gets picked up in the more formal manner and if it doesn't, it dies on the vine. 
 
I don't represent NFL players but I cannot believe that Kessler would prevent Brady from having an informal discussion with Kraft.  And I don't believe that he would prevent someone connected with Tom from having an informal discussion with Kraft or someone else connected with Goodell.  That discussion would not lead to an immediate, formal acceptance by Tom but it could get the ball rolling.
 
And if I am wrong and someone who practices in this area tells me that it would never proceed in this way and never in fact does, then mea culpa. 
 
I just don't buy that it's nearly as rigid as you are suggesting.

 

[snowmanny]

I don't even understand why Kraft would be involved in this at all.  This isn't his fight anymore and Brady has every right to appeal it to the end. It is to the 2015 Patriots' benefit if Brady wins but Kraft  can't go against the other owners by publicly supporting him. Sure on balance maybe he'd be happy if it was all over now with a one game suspension but he risks pissing off Goodell and/or Brady and/or the other owners and/or the NFLPA if he sticks his nose in the middle of this matter.  This isn't the same as trying to manipulate the length and timing of a three-game David Ortiz suspension: this is a battle between the NFL and the NFLPA that has ramifications that will extend beyond this single case.

 

[TheoShmeo]

I think you answered your own question, Snowmanny.
 
Kraft's team's chances improve if Brady's suspension is reduced.
 
Kraft would presumably like the conversation to be about the Pats on the field and their title, and not the continuing saga of Tom Brady versus Roger Goodell.
 
Kraft would presumably like his star player to be battling opposing defenses and not the NFL.
 
Kraft is in a unique position to broker something in that he's trusted by and is close with both sides.
 
Kraft is likely still viewed positively by the NFLPA in light of his role in brokering the last Labor issues.
 
And, along those lines, Kraft has functioned as a problem solver and facilitator in NFL labor issues in the past so it's not as if he has never stuck in hand into circumstances that have ramifications that will extend beyond a single case.
 
But Kraft is but one possible person who could be involved here.  I think he's a logical choice but he's far from the only candidate to approach Brady or Team Brady about a possible settlement.

 

[amarshal2]

It would be one thing if there was strong logic behind your scenario but there isn't. This isn't life in prison or the death penalty. It's more like 30 days of probation as the money means very little. What innocent public person and union member with a reputation on the line would accept a deal that cut his completely illegitimate and coordinated public punishment to 15 days probation in exchange for giving up all legal recourse?

Nobody.

Goddell's team knows this. There is no benefit to using back channels that put his reputation further on the line if revealed and potentially give ammo to the Brady side all in the name of offering a deal nobody would accept.

Edit: and if Goddell thinks Brady is guilty based on the evidence he has then he's not offering a deal anyway.

Edit2: not to mention that your scenario requires team Brady to think they have no chance in court.

 

[Papelbon's Poutine]

But...balloons!!?!?