Tom Brady and Roger Goodell aren’t going to just be two guys sitting down Tuesday morning over coffee hashing out what’s gone on over the past six months.
Brady’s appeal proceedings at the NFL offices on New York’s Park Avenue will be formal, according to people familiar with how these things go down.
Brady will be represented by NFLPA counsel Jeffrey Kessler and another attorney who has done work for the NFLPA before, Andrew Tulumello from the law firm Gibson Dunn in Washington, DC. Brady’s side will zero in on Ted Wells’ 243-page investigation. They’ll also attack the level of punishment – four games and $1.88M for Brady as it currently stands. As it pertains to the Wells Report, their assertion will be that its findings are flawed based on haphazard gathering of PSI numbers before the game and at halftime and the failure of Wells and Exponent, the firm that did the science, on a number of fronts.
Wells, we learned Monday, will be in the room for the appeal which could lead to some interesting interplay since cross examination and objections are a part of the proceedings. Despite Wells’ cocksure conference call with reporters after his report was made public, there are plenty of items for Kessler to choose from if he wants to put Wells on the griddle.
Of course, with this being Brady’s appeal, he’ll be on the griddle as well. Prior inconsistencies in his testimony – if there are any – are going to be highlighted. Kessler and Tulumello can argue that the case begins and ends with the apparently flawed data, that there is no conclusive proof that the balls were tampered with because the PSI levels are explicable. The NFL’s attorneys could counter by asking Brady to explain things like texts and lengthy conversations. That also has the potential to be contentious.
Throughout this, Goodell must maintain every appearance of impartiality. He’s got the collectively bargained right to hear this appeal even though he handpicked the investigator and meted out the discipline.
But if the transcript – there will be a court transcript – shows Goodell was not willing to hear both sides (as he’s labored to make clear he is), that could work against him if he doesn’t vacate the suspension and an appeal follows.
As for that potential appeal, there will be hurdles to clear in order to get Brady’s suspension “tolled” or suspended if it isn’t vacated. This is where a term called “law of the shop” comes in. Goodell does have the right to mete out discipline in his “shop.” He does not have the right to mete out a disproportionate penalty for an offense that’s unprecedented. Nor is he allowed to hand out discipline based on bad evidence, which the Wells Report is going to be portrayed as.
But an appeal won’t overturn Goodell just because the whole thing seems stupid.
If only, right?