On Thursday, Adam Schefter of ESPN shared with the football-following world some interesting, and potentially inflammatory, details from an affidavit signed by Giants defensive end Osi Umenyiora, one of the named plaintiffs in the Tom Brady antitrust lawsuit. The document outlines allegedly unfulfilled promises from G.M. Jerry Reese regarding a renegotiated contract.
Since then, Umenyiora has softened the clear implication of the affidavit -- that Reese lied. “They can’t talk to my agent, they can’t talk to other teams about trading me, they can’t do anything because of the lockout,” Umenyiora told Mike Garafolo of the Newark Star-Ledger. “So that’s how the lockout has hurt me, per se, and that’s what the statement was about. Not that he’s a liar or he’s this or that. He hasn’t even had an opportunity to do anything because of the lockout, which is exactly why it’s hurt me.”
Lost in the analysis of the affidavit and Umenyiora’s explanation of it are two questions that, for the lawyers in the crowd, are far more intriguing. First, how did a signed but not yet filed affidavit makes its way to the media? Second, why was a signed but not yet filed affidavit leaked to the media?
As to the first question, the universe of potential sources is small. An affidavit routinely is written by a lawyer, signed by the witness, and returned to the lawyer until the time comes to file the affidavit. Thus, an affidavit that has not yet been filed definitely is in the possession of the lawyer who wrote it. The witness also possibly has a copy. In this specific instance, there’s also a chance that Umenyiora’s agent, Tony Agnone, has a copy of it, too.
Based on some homework we’ve done, and cognizant of the unwritten rule that members of the media generally shouldn’t speculate as to the identity of a reporter’s sources, it wouldn’t be unreasonable to conclude that the lawyers representing Umenyiora and the other players leaked the affidavit to the media.
As to the second question, we envision two potential reasons for the leakage of the Umenyiora affidavit. First, a strategic decision possibly was made based on the status of the negotiations between the NFL and the NFLPA* to fire a shot across the owners’ bow as the talks enter a potentially contentious phase. Second, lawyers who have been unable to “blow up” the talks from inside the room possibly have decided to try to “blow up” the talks from outside the room, by disseminating information that could upset the positive vibe that has emerged over the past few weeks. Though the impact of the leakage of the affidavit on the talks isn’t known, the launching of a proverbial fastball at the chin of a respected organization whose co-owner, John Mara, is directly involved in the negotiations could provoke a reaction. The contents of the affidavit also could fan the flames of mistrust between the players and the owners, giving the workers another reason not to trust management.
Obviously, we don’t know whether the lawyers leaked the affidavit, or whether the lawyers did so with the objective of derailing the settlement process. But we do know, based on Schefter’s report from Wednesday, that the lawyers tried to throw a wrench into the process not long after the got back into the room, two weeks after being exiled. Is it crazy, then, to think that they’ve responded by trying to throw wrenches from afar?
If our speculation in this regard is accurate, and if the lawyers plan to continue to leak affidavits that have been signed but not yet filed, they’d be wise to consider Rule 3.6 of the Model Rules of Professional Conduct, which apply to lawyers practicing in virtually every jurisdiction. Sharing with the media information not yet in the public record with the goal of undermining a mediation process over which a federal magistrate judge is presiding could get the lawyers into real trouble.
If our speculation is inaccurate, then none of this should be an issue. And, presumably, no other affidavits will be leaked to Schefter or other reporters as the talks enter their most critical juncture yet.