Patriots quarterback Tom Brady continues to fight the NFL’s effort to suspend him four games. The Patriots finally have gotten directly involved in the matter and, in so doing, have taken aim at the manner in which the Commissioner and the rest of the league office handled the case.
On Wednesday, the Patriots submitted a friend-of-the-court brief in connection with Brady’s petition for a rehearing before the U.S. Court of Appeals for the Second Circuit, calling the suspension of Brady a “highly manipulated and fundamentally unfair process designed and used by the Commissioner to reach and justify a predetermined outcome in violation of the” labor agreement between the NFL and the NFL Players Association.
Yes, the Patriots, one of the 32 members of the NFL, has argued in an eight-page court document that the NFL violated its duties and obligations under the CBA. While the team’s position isn’t surprising, it’s nevertheless jarring to see such an open and official challenge to the league by one of its teams.
From the first sentence, the brief submitted by the Patriots cuts sharply against the league’s interests, arguing that the controversy “presents an issue of exceptional importance [relating to] the extent to which settled precedent and fundamental fairness operate as a check on the broad authority of arbitrators,” and that the existing ruling “threatens to undermine vital principles governing arbitration of collective bargaining agreements throughout the national economy.” The NFLPA surely is thrilled by that observation, especially with a fresh round of full-scale labor talks less than five years away.
The brief points out that the Patriots “stand to lose their All-Pro quarterback for 25 % of the upcoming regular season based on a severely flawed process,” and that “[u]nfairness has permeated the entire handling of this matter by the League.” Again, it’s not a shock that the Patriots believe this, but it’s a big deal to see it reduced to writing and submitted to a federal appeals court.
The Patriots specifically argue that the Commissioner “treated Mr. Brady’s appeal not as an appeal but as a continuation of the investigation,” which resulted in “new findings” that “shifted the basis for his discipline of Mr. Brady in a decision from which Mr. Brady then had no appeal rights.” At footnote 2 to the brief, the Patriots allege that “the League’s conduct reflects less a search for the truth than pursuit of a pre-determined result,” and points out that the NFL “leaked materially incorrect PSI information and refused to correct it for months, allowing public misperceptions to fester.”
That’s a direct reference to the ESPN report that 11 of 12 footballs were measured at 2.0 pounds under the minimum PSI level of 12.5, which the Patriots (and anyone else paying attention) came directly from league employees. The Ted Wells report, issued roughly three months later, demonstrated the gross inaccuracy of the ESPN report.
The Patriots also focus on the Commissioner’s refusal to give Brady access to notes of interviews with league officials who observed the testing of the footballs during halftime of the January 2015 AFC title game and the flawed science of the Wells Report. The Patriots explain that, without the interview notes, it was impossible for Brady to test the assumptions that were made regarding the critical issue of the timing of the PSI measurements during halftime.
“That left Mr. Brady unable to challenge the fundamental premise of the Wells Report,” the Patriots contend, “that science alone does not explain the PSI of the Patriots footballs.”
Elsewhere in the brief, the Patriots claim that the Commissioner “misstated” evidence regarding Brady’s explanation of his interactions with team employee John Jastremski on the key question of Brady’s credibility as a witness. The Commissioner had said that Brady claimed he spoke to Jastremski only about preparation of footballs for Super Bowl XLIX, which in the Commissioner’s view made Brady’s testimony not believable. However, the transcript shows that Brady testified he spoke to Jastremski about both the preparation of footballs and the then-new allegations of potential tampering with footballs. The not-so-subtle point is that the Patriots are directly attacking the credibility of the Commissioner’s attack on Brady’s credibility.
Finally, the Patriots challenge the Commissioner’s decision that Brady’s “non-retention of his cell phone was evidence of guilt without acknowledging that” investigators already had said they didn’t want to take possession of the phone or remove information from it, that Brady supplied the NFL with a full list of persons with whom calls and texts were exchanged, and that the league already had the phones of the two alleged culprits in the tampering scheme, Jastremski and Jim McNally.
The Patriots conclude by arguing that the pending decision of the Second Circuit “endorsed the outcome of a highly manipulated and fundamentally unfair process designed and used by the Commissioner to reach and justify a predetermined outcome in violation of the CBA and this Court’s precedents,” that the ruling “renders meaningless the vital protections afforded by a bargained-for right to appeal and to obtain and present pertinent evidence,” and that “[i]ts impacts will be felt far beyond the NFL.”
Whether the impact of the Patriots’ aggressive maneuver will be felt beyond the confines of this specific case remains to be seen. Regardless, the Patriots — who opted not to pursue an appeal of their own penalties arising from the deflation allegations in the hopes that Brady would be shown lenience — have finally done what their fans have wanted them to do for months.
In an official legal document, the Patriots have pointed a finger directly at the behavior and agenda of the Commissioner and his inner circle.