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ProFootballTalk: Woody Johnson needs hands-off approach
When I saw that the NFLPA lawsuit filed Wednesday in Minnesota had been assigned to Judge Richard H. Kyle, the name rang no bells. It should have.
As noted by Gabe Feldman of Tulane Law School, the antitrust lawsuit filed in 2011 against the NFL by, among others, Tom Brady initially was assigned to Judge Kyle. And Feldman’s tweet includes a link to the PFT story from 2011 regarding Judge Kyle’s prompt decision to step aside from the case.
At the time, Judge Kyle cited 28 U.S.C. § 455 as the basis for the move. Section 455 requires disqualification under certain specific circumstances pointing to an actual or potential bias, including “[w]here in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter.”
As explained in the 2011 PFT post (which carries my name but which I have no recollection of writing), Judge Kyle practiced with the firm of Briggs & Morgan at the time he was appointed to the federal bench in 1992, and Briggs & Morgan served as the lead local counsel for the NFLPA in the original Reggie White antitrust case. Even if Judge Kyle never worked on the White case, Section 455 potentially would apply if any of the lawyers with whom he worked while at Briggs & Morgan handled the case.
But there’s a big difference between the 2011 antitrust lawsuit and the current controversy. The complaint filed by Brady and other players following the expiration of the labor deal that traced back to the original Reggie White antitrust lawsuit, giving the two cases a real connection.
The current case has no connection to claims of antitrust or anything else that would be related to the case that Judge Kyle’s former firm was handling. Although his former firm represented the NFLPA, he apparently had no involvement in the representation.
Thus, recusal seems less likely in this case.
Of course, the NFLPA may secretly be rooting for a recusal, in the hopes that the case will land back on the docket of Judge David Doty. Even if Judge Kyle keeps the case, the NFLPA will argue that Judge Doty’s decision from earlier this year in the Adrian Peterson lawsuit should be applied to the Tom Brady case, since it stands for the proposition that the NFL must give players proper notice of the things for which they can be disciplined.
The four-page lawsuit filed Tuesday by the NFL in Manhattan says nothing about the nuts and bolts of the Tom Brady suspension. The 54-page lawsuit filed Wednesday in Minnesota by the NFLPA says plenty.
On the question of whether Brady can be suspended for failing to cooperate with a league investigation, the NFLPA argues that the NFL cannot suspend him because the NFL had never suspended a player for failing to cooperate with an investigation. In support of that position, the NFLPA quotes former Commissioner Paul Tagliabue’s ruling that exonerated all Saints player in the 2012 bounty scandal.
“In my forty years of association with the NFL, I am aware of many instances of denials in disciplinary proceedings that proved to be false, but I cannot recall any suspension for such fabrication,” Tagliabue wrote. “This is no evidence of a record of past suspensions based purely on obstructing a League investigation.”
As further evidence of the applicable precedent, the NFLPA points out that Brett Favre was fined $50,000 and not suspended after the league concluded he was “not candid” during a sexual harassment investigation, a circumstance Tagliabue expressly cited in throwing out the Saints suspensions based on alleged obstruction of the NFL’s investigation.
Beyond the big-picture question of whether the NFL has secured via collective bargaining the ability to suspend a player for obstructing an NFL investigation, the NFLPA lawsuit contends that no one told Brady that discipline could be imposed for failing to surrender his private text messages and emails. At paragraph 72 of the petition to vacate the arbitration, the NFLPA alleges that “Brady testified that it anyone had told him he could be suspended for declining to produce the private communications, he would have produced them — notwithstanding the advice of his agents-lawyers.”
On one hand, it’s easy for Brady to say that now. On the other hand, why didn’t Wells warn Brady that he could actually be suspended for failing to cooperate? Apart from ensuring that Brady was fully aware of the consequences of refusing to comply, this is one of the legitimate tactics available to a $1,000-an-hour (or even a $10-an-hour) lawyer to get to the truth.
“Tom, I know you don’t want to give me the phone. But you need to realize that, if you don’t, you could be suspended.”
If Ted Wells truly never said that, then maybe he should be suspended.
Which leads back to the bigger question of whether Wells wanted to get to the truth, or whether Wells wanted to get to a predetermined conclusion. Based on the lack of cooperation, Wells drew an “adverse inference” that Brady was at least “generally aware” of alleged tampering by John Jastremski and Jim McNally. Which allowed Wells to get to a conclusion that cheating occurred, and which arguably bolsters NFLPA executive director DeMaurice Smith’s previously-stated position that “the Wells report delivered exactly what the client wanted.”
For more from the NFLPA’s lawsuit on the actual “independence” of the investigation, stay tuned.
The Giants want to help Jason Pierre-Paul, and they seem hurt that he won’t let them.
Coach Tom Coughlin was the latest to weigh in on his franchise-tagged defensive end, who isn’t going to be there for the start of training camp after losing a finger in a Fourth of July fireworks accident.
“I want to help. I want to be there for him. But he’s decided that he doesn’t want our help,” Coughlin told Jenny Vrentas of TheMMQB.com. “He thinks that something will come of it. But, all I care about, all any of us care about, the whole organization, is the well-being of the kid. Something traumatic has taken place here, and we have all kinds of experts here in this city that are at our disposal. Putting those things together is very easy.”
Like co-owner John Mara earlier this week, Coughlin seemed dismayed by Pierre-Paul’s keeping the team at bay. He said as soon as he learned of the accident, he texted Pierre-Paul “How can I help you?,” but that text had not been returned.
And until they hear from him, they aren’t quite sure how to proceed.
The Dolphins signed three to fill out the roster.
Former Patriots C Dan Koppen thinks it’s unfair to equate Tom Brady’s suspension with guys charged with domestic violence.
The Browns are motivated by a lack of national respect (you think they’d be used to it by now).
Steelers TEs aren’t catching as many passes, but they’re still involved.
It seems appropriate that a Broncos team with an aging QB signs an endorsement deal with Empower Retirement.
The Raiders have an interesting OT battle going into camp.
The Cowboys insist they’re fine at RB.
Eagles coach Chip Kelly didn’t mean for “culture beats scheme” to become a motto but it has.
Washington finally got a first-round pick to stay at home for a second contract.
Some Bears draft picks who looked like misses before might be hits in a new scheme.
The Packers enter training camp with high expectations (so they’re the ones?).
Taking a look at the Falcons’ special teams.
The Saints hired three new scouts, shuffled some titles around.
The Buccaneers aren’t getting good grades in grammar for their new slogan.
The Cardinals have some concerns on offense going into camp.
Rams coach Jeff Fisher isn’t thinking about Los Angeles.
The 49ers handling of a huge transition will be the biggest thing to watch in camp.
The Seahawks are learning about the hard part of success — paying everyone responsible for it.
Tight end Jermaine Gresham had to wait until July to land a job for the 2015 season because he had back surgery this offseason.
Now he’ll have to wait to get on the field during training camp with the Cardinals for the same reason. The team placed Gresham on the physically unable to perform list Wednesday, which leaves him ineligible to practice until the team activates him from the list.
He’s not the only tight end that the Cardinals will be waiting on as camp gets underway. Troy Niklas landed on the non-football injury list with a hamstring injury that he presumably suffered while doing work away from the team in the last few weeks. He also had ankle surgery in June, which may have joined John Carlson’s retirement as a reason for the Cardinals’ interest in Gresham.
The two injuries should leave Darren Fells with plenty of work in the opening practices of camp.
Linebacker Zack Wagenmann was also placed on the NFI list because of a foot injury he had before signing with the Cardinals as an undrafted rookie this offseason.
Tackle Gosder Cherilus spent the first five years of his career with the Lions and he may get a chance to resume his career there after being released by the Colts.
Cherilus visited with the Bills on Wednesday, but, according to multiple reports, will be in Detroit on Thursday to renew acquaintances with the Lions. Cherilus started 71 games at right tackle for the Lions during his first stint with the team and his visit comes at a time when the team could use a healthy option at the position.
The Lions placed LaAdrian Waddle on the physically unable to perform list on Wednesday as a result of the torn ACL that kept him from taking part in the team’s offseason activities. Cherilus has had knee troubles of his own, but, if healthy, the Lions might prefer his experience to going with Cornelius Lucas in the event that Waddle doesn’t get healthy in time for the regular season.
The Lions also placed running back Joique Bell and defensive end Jason Jones on the PUP list. Bell had knee and Achilles surgeries that also kept him on the sidelines for spring work while Jones is out with an undisclosed injury.
Patriots owner Robert Kraft changed his tune this week, going from a conciliatory shrug to defiance, saying: “I was wrong to put my faith in the league.”
But another owner who has had his share of punishment from the NFL said he thinks commissioner Roger Goodell is still doing a good job.
“He’s got obviously a very tough job,” Jones said, via Todd Archer of ESPNDallas.com. “Now I see some people doing that, that’s that old violin that’s not feeling too sorry for him because that’s why you pay the big bucks is to deal with the big problems. But he’s doing an outstanding job. I can tell you firsthand that in his spot you have to with people that you are counting on to help build and to help excel as far as the National Football League, I’m talking about the owners, you have to know that you’re going to make some decisions that are very unpopular with that particular group. This is the case.
“I can speak to that because on a personal basis as well as for my franchise and our Dallas Cowboys franchise, we’ve had that happen to us. I’m sitting there living with the result of the commissioner’s decision still today that I didn’t agree with when it happened. And so some of the very people sometimes that have the biggest complaints, they’re the ones who give you a phone call and say, ‘Hey let’s be a team player now and let’s all get in here and realize that this happens to everybody and let’s go on and compete. We’ve got a great league and a great game.'”
Kraft had previously been a team player, saying it was best for the league for him to drop any complaints over the team’s #DeflateGate penalties. But when Goodell upheld quarterback Tom Brady’s four-game suspension, Kraft lost it, and went back on the offensive against the league in general.
While the $1 million fine and loss of a first- and fourth-round pick is harsh, so was Jones losing $10 million of salary cap space for taking advantage of the uncapped year.
“He has to make hard calls,” Jones said of the commissioner, “and more often than not, you’re going to have a season or you’re going to have a period of time where those go against you as an owner in the NFL.”
Of course, Jones’ pro-Goodell stance (and those are getting fewer and farther between) might be helped by the fact a four-game suspension keeps Brady out of a game against the Cowboys.
Much like Kraft, Jones knows that what’s good for him is still what’s best for him.
Falcons wide receiver Roddy White is entering his 11th NFL season, and that requires some maintenance.
Whether it’s an issue going forward remains to be seen.
White told Vaughn McClure of ESPN.com that he had his left knee drained prior to minicamp, but he wasn’t worried about it affecting him this season. He had the same procedure done last year in minicamp and missed two days of practice, but otherwise wasn’t bothered by it.
“It’s not a concern to me because it’s just like a little irritation,” White said. “My cartilage in my knee is not smooth. It’s kind of rippled. You can elect to have surgery, but I just decided not to because I’m not a surgery guy. I just don’t want to do it.
“They gave me the option two years ago to have surgery. They said they would have to slice off the top of my cartilage, and I was like, ‘I don’t want to do that.’ I don’t want them to keep shaving my cartilage off until there’s no more cartilage. Then you start to get arthritis.”
He said getting the knee drained again during the season was a possibility. Neither of the two games he missed last year was because of the knee problem.
“If I get my knee drained on a Monday, I can practice on Wednesday,” White said. “It’s not an issue where I’m going to miss a game, because it’s such a small issue. I’m not worried about it — not at all.”
Perhaps not, but as players age, the recovery times for any procedures get longer. And the 33-year-old wideout needs to be well and on his game, as the Falcons have many other unknowns on the roster they should be worrying about a whole lot more.
Running back Stevan Ridley was among three veterans placed on the physically unable to perform list by the New York Jets on Wednesday.
Ridley and Colon are recovering from knee injuries while Vickerson has a hamstring issue.
On a positive note, 2013 first-round pick Dee Milliner was not placed on PUP. Milliner was limited this offseason as he continued to recover from a torn Achilles suffered last October.
Players on PUP can be activated at any point during the preseason, but players must be placed on the list before the start of camp to be eligible to remain on the list during the regular season.
Galette was released by the Saints last week after video surfaced of him twice hitting a woman. He passed his physical with New Orleans before being released.
Galette will meet with the Redskins at their training camp home in Richmond, Va. and take a physical with the team.
Galette racked up 22 sacks with New Orleans over the last two seasons.
A former potential first-round draft pick, cornerback Ifo Ekpre-Olomu fell all the way to the seventh round in this year’s draft after an ACL tear and dislocated knee ended his college career.
The injuries will keep Ekpre-Olomu off the field in 2015 as well.
According to Mary Kay Cabot of the Cleveland Plain Dealer, Browns head coach Mike Pettine said Ekpre-Olomu will likely miss his entire rookie season as he continues to recover from the injuries suffered last December.
“Players that have had this injury before, it’s rare that you would return that season,” Pettine said. “Given our depth, we’re very comfortable with him sitting out. That’s just one that we felt it was a low-risk, high-reward move when we took him in the seventh round. There’s no reason to rush it back given the depth in that room now anyway.”
The Browns took a flier on Ekpre-Olomu with their final selection, No. 241 overall in the seventh round, in hopes that he can return to his former self in time. Ekpre-Olomu posted 244 tackles and nine interceptions in four seasons at Oregon. He was injured in a December practice in preparation for the Rose Bowl against Florida State.
On the same day that the NFLPA fired back at the NFL in court, Patriots quarterback Tom Brady’s agent went on the offensive, too.
Don Yee, who made some questionable arguments in the aftermath of the publication of the Ted Wells report, shared plenty of information in a discussion with Tom Curran of CSNNE.com.
“They shifted from PSI to the new shiny object, the cell phone,” Yee said of the ruling upholding the four-game suspension. “We expected this. Because this was the easy way to pivot off the junk science and get off the PSI issue. And we knew that from a newsworthiness standpoint, the general public might be easily fooled. But in the coming days — just like the Wells Report being picked apart after its issuance — the same thing happens with this.”
If Yee knew that the cell phone would become a red herring, it would have been smarter for Yee to get ahead of the notion that “Tom Brady destroyed his cell phone” before the NFL could unleash that mantra in masterful fashion, winning the P.R. battle with a one-punch knockout.
Then again, maybe Yee didn’t take the lead on the topic because he possibly would have been leading with his chin. Consider the explanation from Yee to Curran about what happened with the phone.
“What happened is this,” Yee said. “After Goodell decided to take the appeal and publicly asked for new information, we were under the authority of the actual Commissioner, not private investigators with dubious authority. We decided to provide him with the new information. This was in June. The information that Wells requested covered September 2014 to February 28, 2015. The first thing we did in June was say, ‘Holy cow, do we have a cell phone left from that time period?’ because Tom regularly cycles through phones. We happened to find one and we tested that phone and found it covered the period October through November.
“In a letter to Goodell, we told him that we don’t have any other phones that cover November through March. We believe Tom may have cycled through a phone. We were the ones that disclosed this issue. Meaning that if Tom Brady was trying to hide something, why would we voluntarily disclose that fact? . . .
“It wasn’t until February 28 that Ted Wells’ team sent us an e-mail asking for contents off Tom’s phone. They never asked for the actual device. Ted Wells, in his May 12 press conference actually said that — he emphasized that. They didn’t want the actual device. On March 2, we wrote back to Ted Wells and told him we considered his request for information off the phone and we declined his request. On March 3, they said they hoped we would reconsider. They knew going into the March 6 hearing that they were not going to get the actual device. They knew that.”
So, from Yee’s perspective, it doesn’t matter what Brady did with the phone after March 3, because he wasn’t giving it to Wells as part of the investigation.
“Why did Tom cycle through a phone that week?” Yee said. “It turns out he just got back to the country after taking a trip. Why did he cycle through the phone that week? The iPhone 6 was coming out. [Brady] happened to want a new phone and knew Ted Wells’ team didn’t want the actual device, they only wanted information from the device.”
That’s where Yee’s explanation gets a little wobbly. For starters, the iPhone six came out months before March 2015. (In fairness, it came out in September, so Brady perhaps decided to wait until after the season to get one.) Also, if Wells wanted not the device but the information from it, Brady should have retained the data card.
Yee explained that Brady nevertheless equipped Goodell with the information necessary to reconstruct the text messages.
“We compiled all of Tom’s personal cell phone billing records from his vendor from September through the end of February 2015,” Yee said. “The records detail every incoming and outgoing phone call. Every incoming and outgoing text. We submitted that to the Commissioner. They would then be able to determine were there any other communications with Patriots personnel that were not outlined in the Wells Report. Everything matched up perfectly with the Wells Report with the exception of three texts between Tom and [John] Jastrzemski on February 7, and that was only because Wells had given Jastrzemski’s phone back [on] February 7. As far as any texts prior to the AFC Championship Game, where any alleged scheming would have taken place, Ted Wells would have had any communications between Tom, Jastrzemski and [Jim] McNally. This personal phone billing record compiled by an independent third party shows that he had no communications at all with McNally.
“In an effort to be even more transparent, we decided to offer to the Commissioner to disclose the identities of everyone that Tom communicated with. We said that some of these individuals are NFL-related personnel and that the Commissioner has the power to compel a search of their phone to see if they have texts remaining on their phone from Tom. The Commissioner’s own decision in footnote 11 acknowledges this and says they thought it was impractical to conduct this search. The amount of NFL-related personnel that the league needed to consult, if they so chose, was 28 people. Which is not very many people. And a number of those people they had information from already. Tom texted from December 24 to February 24 these NFL-related personnel. Ten teammates, two current coaches, five former teammates, one NFL Network personnel, five front-office personnel and five other Patriots employees. A number of them, the league had the authority to say, ‘Check your cell phone, we want any text exchanges between you and Tom Brady from that period.’ They chose not to. I don’t know why.”
The answer could be that accepting this offer would rob the NFL of the “Tom Brady destroyed his cell phone” silver bullet, which delivered on Tuesday a conclusive win in the court of public opinion.
But the inevitable pushback has commenced, and this red state/blue state issue will continue to polarize fans until it is finally resolved in court. And beyond.
In the six months since #DeflateGate first emerged, PFT has received countless emails from fans pushing various ideas and agendas and opinions and theories. None has been more persistent than one specific reader who routinely sends emails to multiple media outlets, arguing zealously against the Patriots and Tom Brady.
Her lengthy and consistent and hostile emails read like a native of Russia trying (and failing) to speak English. (Not that there’s anything wrong with being a native of Russia who is trying and failing to speak English.)
Here’s a portion of the message that arrived in the PFT mailbox tonight.
“Patriots tom brady is wrongdoing for deflategate. Text messages. I support to roger goodell. I hates Patriots robert kraft is a–hole and a–hole and stupid and dumb. Robert kraft is wrong and liar. Patriots qb tom brady is lie and liar and dumb and cheat. Tom brady is guilt. I against tom brady and Robert kraft. Patriots owners Robert kraft is fired and out of office and go to jail. . . .
“President Eric Winston is wrong and demaurice smith is wrong and fired and failed. Roger goodell is rigth. Ted wells is rigth. I like to roger goodell and ted wells. I not like tom brady and Robert kraft. I am never watch on tv for football. Roger goodell is winner. Nflpa are loses. Tom brady is loses. Robert kraft is loses.
“I did read from roger goodell said against tom brady is 4 games. Tom brady is look bad and devil. . . .
“Boston bruin is loses. Basketball in boston are loses. Red sox are most loses hahahahahahahahahahah. Tom brady is wrongdoing for deflategate. Tom brady is dumb.”
Actually, I’m the one who is dumb, because I make it easy for folks to send in emails via the “send scoop” button. If I keep making stupid decisions like that, I eventually will be wrong and fired and failed.
The 54-page document filed Wednesday by the NFLPA in a Minnesota federal court does not include a request for an injunction allowing Patriots quarterback Tom Brady to continue playing while the litigation proceeds. But, as noted earlier today, it’s coming.
At page 13 (paragraph 28) of the document, the NFLPA says that the late issuance of a decision upholding Brady’s suspension “will irreparably harm” the quarterback if he misses games while the case proceeds.
“Accordingly,” the NFLPA writes, “the NFLPA and Brady will shortly file a Motion for Preliminary Injunction or, in the Alternative, for Expedited Disposition so that relief can be granted prior to September 4, 2015, when the Patriots begin final preparations for their first regular season game.”
“Irreparable harm” is the key. It means, in English, that nothing a court does after the fact can restore Brady’s ability to play in games that he missed under a suspension that was later invalidated.
A state court in Minnesota ruled several years ago that former Vikings defensive tackles Kevin and Pat Williams would suffer irreparable harm if their PED suspensions proceeded while a challenge in court was pending. That case lasted so long that, by the time the suspensions were finalized, Pat Williams had retired.
For Brady, there’s a chance that, as the case moves from the district court to an appellate court, Brady could potentially play the entire season without serving the suspension, with the suspension potentially starting in 2016.
The lawsuit filed by the NFL on Tuesday against the NFLPA received a judge appointed by President Bill Clinton, a Democrat. The lawsuit filed by the NFLPA on Wednesday against the NFL received a judge appointed by President George H.W. Bush, a Republican.
Maybe the next race to the courthouse will be to see which side can dismiss its lawsuit first.
While in many cases an overly simplistic assessment, the political background of the judge becomes an important consideration in civil cases. Democratic judges are believed to be more philosophically aligned with labor and individuals; Republican judges are believed to be more philosophically aligned with management.
In New York, the case filed by the NFL landed with Judge Richard M. Berman. In Minnesota, the initials “RHK” applied to the document filed by the NFL suggest that the lawsuit has been assigned to Judge Richard H. Kyle.
Kyle could step aside or transfer the case to someone like Judge David Doty, who has a long history of handling NFL-related cases. Or Kyle could decide to handle the case on his own, and the political mindset that earned an appointment from Bush 41 could be good news for 345 Park Avenue.
Although the NFLPA privately recognizes that the NFL’s victory in the race to the courthouse could make the union’s filing in Minnesota moot, the NFLPA and Brady could be better off in New York, if Kyle stays true to the principles that made him attractive to President Bush — and if Berman stays true to the principles that made him attractive to President Clinton.