With that in mind, sources say the crux of the appeal will be argued on a handful of key points. Among the most important
Brady's failure to comply with records requests
Of all the points that will be attacked, this one is going to be the most difficult for Brady to get around. As it stands, a league source told Yahoo Sports that Brady initially believed he had fully satisfied requests for information when he sat for an extended interview. The source added that after speaking with investigators, Brady was never specifically informed that his interview alone was not enough. Nor was he advised, the source said, that a failure to turn over requested material would be seen as an obstruction significantly impacting penalties.
That latter point significant obstruction has crystalized as Brady's biggest problem since the penalties were handed down, and was accentuated most recently by Goodell at the league's San Francisco meetings.
"I think we were very clear in the letter [to Brady from the league], that the non-cooperation was a factor in the discipline, absolutely," Goodell said. " We do expect to have that [cooperation] in investigations. That's an important part of it. And when there isn't full cooperation, that is certainly part of the discipline."
Goodell added at those meetings that Brady could still impact his sanctions by bringing forth new evidence in an effort to cooperate. But the specifics of how Brady can do that at this stage are unknown. It's unlikely that simply providing a stack of text messages or emails from specific dates would resolve the issue.
It is believed that investigators would seek one of two things: Either communications records directly from the source (such as Brady's cellular provider) or that someone with forensic expertise be allowed to extract the requested communications directly from Brady's account. Because phones and other communications can be scrubbed of material, only one of those two routes would be a "tamper-free" disclosure. All of which means full cooperation likely can't be achieved with Brady's lawyers or the NFLPA simply handing over more information.
That leaves three routes which could unfold Tuesday:
1) Brady and his attorneys could agree to an examination of his communications on specific dates. There is a possibility that this could have already taken place prior to the appeal hearing. But if the examination hasn't already occurred, that means any agreement on Tuesday would then trigger either a forensic expert or a communications provider being tasked to gather records. Because gathering records now would delay the appeals process, it's likely Brady and his lawyers have already made a decision on this and taken the according steps heading into Tuesday.
2) Brady and his attorneys could refuse access to his communication accounts, arguing that investigators already have the applicable materials turned over by the Patriots and team employees Jastremski and Jim McNally. Brady's attorneys could argue that since investigators have received the Jastremski and McNally communications, they already have whatever is relevant, and additional requests upon Brady would constitute a "fishing expedition" by the NFL.
3) Brady and his attorneys could attack the league's "obstructing an investigation" penalties based on previous precedent. This would likely be done by pointing to the league's handling of Brett Favre when he refused to cooperate in the NFL's probe into sexual harassment allegations. Favre refused to comply with the league's demands for communication information when it was investigating allegations brought forth by former New York Jets employee Jenn Sterger. In that case, Favre was ultimately fined $50,000 for failing to cooperate. Attorneys could argue that the NFL's penalties for Brady's refusal to cooperate (a four-game suspension and $1.88 million fine in salary) are excessive when compared with the Favre case.