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In response to the decision upholding his four-game suspension, Tom Brady has spoken. Through his agent.
Brady also has spoken, sort of, through his union.
“The Commissioner’s ruling today did nothing to address the legal deficiencies of due process,” the NFL Players Association said in a statement. “The NFL remains stuck with the following facts.”
The statement then lists the following facts, with bullet points: (1) the NFL “had no policy that applied to players”; (2) the NFL “provided no notice of any such policy or potential discipline to players”; (3) the NFL “resorted to a nebulous standard of ‘general awareness’ to predicate a legally unjustified punishment; (4) the NFL “had no procedures in place until two days ago to test air pressure in footballs”; and (5) the NFL “violated the plain meaning” of the Collective Bargaining Agreement.
“The fact that the NFL would resort to basing a suspension on a smoke screen of irrelevant text messages instead of admitting that they have all of the phone records they asked for is a new low, even for them, but it does nothing to correct their errors,” the statement asserts. “The NFLPA will appeal this outrageous decision on behalf of Tom Brady.”
The points raised in the statement surely will be reflected in the forthcoming legal documents from the NFLPA, which surely will not focus on Brady’s admission that he destroyed his cell phone on the same day he was due to meet with Ted Wells but on the overall flaws in the process.
But here’s the thing. If those are the arguments the NFLPA had previously planned to make on Brady’s behalf, why did he even testify at the appeal hearing? The points raised above could have been established via stipulation or other evidence. Having Brady admit that he destroyed the phone interjected an issue that will hamper Brady in the court of public opinion — and that could prompt a judge to conclude at a visceral level that justice requires upholding the suspension.
Although the destruction of the phone may not be relevant to any of the issues raised in the litigation challenging the suspension, skilled judges can find a way to get to whichever conclusion they believe is justified, even if the motivation to arrive at that destination comes from facts technically irrelevant to the specific issues presented in a given case.
In other words, if the presiding judge (whoever it ends up being) believes Brady’s hands are dirty, the judge will likely be able to find a way to rule accordingly, even if the written decision never mentions the destruction of the cell phone.
The Saints have said goodbye to another member of last year’s defense.
Defensive tackle Brodrick Bunkley was released on Tuesday after failing a physical. Bunkley tore his quad last season and ended the year on injured reserve before taking a pay cut to remain with the team this offseason. The team also released linebacker Junior Galette this week.
Bunkley started 11 games with the Saints last season and spent the last three seasons as a regular on the team’s defensive line. He had 18 tackles and could help someone’s rotation as a run defender if he can show he’s healthy enough to contribute this season. The Saints
New Orleans also placed safety Jairus Byrd, wide receiver Marques Colston and defensive tackle Glenn Foster on the physically unable to perform list. Byrd did limited work this offseason after last year’s season-ending knee injury while neither Foster nor Colston did much work during the spring. Cornerback Brian Dixon was also placed on the non-football injury list.
The 49ers will likely be looking for a bigger contribution from running back Carlos Hyde this season, but they’ll have to wait a little bit before he makes any contribution on the practice field.
Hyde was one of four 49ers placed on the non-football injury list on Tuesday. The 49ers didn’t reveal the reason for the move and Eric Branch of the San Francisco Chronicle reports the only health news about Hyde this offseason was a muscle pull in late May. Branch also reports that Hyde isn’t expected to be on the NFI list for long, so it doesn’t appear to be anything serious.
Branch offers the same report for the expected return of linebacker Aaron Lynch and offensive lineman Trent Brown, who join Hyde and wide receiver DeAndre Smelter on the list to open camp. Offensive lineman Daniel Kilgore was placed on the physically unable to perform list.
All five players are eligible to be activated at any point during training camp and will be ineligible for the regular season version of the lists when and if they are given the green light.
The team revealed, via the Associated Press, Tuesday that Poe had surgery to repair a herniated disc on his back on July 15. Poe initially hurt his back during the team’s offseason workouts and aggravated the injury while working out on his own to prepare for training camp.
Trainer Rick Burkholder said that Poe is out indefinitely and his absence could stretch into the regular season. Jaye Howard will step into Poe’s spot on the defensive line with Mike DeVito and sixth-round pick Rakeem Nunez-Roches also possibilities to see time on the nose while Poe recovers from the surgery.
Whoever is in Poe’s place will be hard pressed to provide the team with the same kind of impact that Poe gives them up front. With trips to Houston and Green Bay sandwiched around a visit from the Broncos in the first three weeks, the Chiefs will need everyone on defense to step up to avoid a rough start to the season in the event Poe can’t go.
Tackle Jonathan Martin chose to retire on Monday and the Panthers responded on Tuesday by adding a pair of players at the position.
The team announced that they have signed Tony Hills and Davonte Wallace while also releasing running back Darrin Reaves.
Hills was a fourth-round pick of the Steelers in 2008 and played four games for them in 2010 before moving on to stints with the Broncos, Colts and Cowboys. He started one game for Indianapolis in 2012 and saw action in four contests for the Cowboys last season. Wallace spent time with the Dolphins as an undrafted rookie last year, but has never played in a regular season game.
Reaves ran for 78 yards on 31 carries and caught five passes in six appearances with Carolina last season.
After NFL Commissioner Roger Goodell upheld Tom Brady’s four-game suspension, Brady’s agent ripped the decision.
In a statement distributed this afternoon, agent Don Yee called the league’s appeals process “a sham” and insisted that Brady has done nothing wrong in Deflategate.
“The Commissioner’s decision is deeply disappointing, but not surprising because the appeal process was thoroughly lacking in procedural fairness,” Yee said. “Most importantly, neither Tom nor the Patriots did anything wrong. And the NFL has no evidence that anything inappropriate occurred.
“The appeal process was a sham, resulting in the Commissioner rubber-stamping his own decision. For example, the Wells investigative team was given over 100 days to conduct its investigation. Just days prior to the appeal hearing, we were notified that we would only have four hours to present a defense; therefore, we didn’t have enough time to examine important witnesses. Likewise, it was represented to the public that the Wells team was ‘independent’; however, when we requested documents from Wells, our request was rejected on the basis of privilege. We therefore had no idea as to what Wells found from other witnesses, nor did we know what those other witnesses said.
“These are just two examples of how the Commissioner failed to ensure a fair process.
“Additionally, the science in the Wells Report was junk. It has been thoroughly discredited by independent third parties.
“Finally, as to the issue of cooperation, we presented the Commissioner with an unprecedented amount of electronic data, all of which is incontrovertible. I do not think that any private citizen would have agreed to provide anyone with the amount of information that Tom was willing to reveal to the Commissioner. Tom was completely transparent. All of the electronic information was ignored; we don’t know why. The extent to which Tom opened up his private life to the Commissioner will become clear in the coming days.
The Commissioner’s decision and discipline has no precedent in all of NFL history. His decision alters the competitive balance of the upcoming season. The decision is wrong and has no basis, and it diminishes the integrity of the game.”
Although Yee’s statement doesn’t say so, Brady is expected to take the NFL to court in an effort to have the suspension overturned.
What began with a 243-page report has culminated, for now, in a four-page lawsuit.
The short and simple complaint filed Tuesday by the NFL against the NFL Players Association in the U.S. District Court for the Southern District of New York specifically seeks pre-emptive confirmation of the arbitration award reflected in Commissioner Roger Goodell’s decision to uphold the four-game suspension imposed on Patriots quarterback Tom Brady.
It’s a move likely without precedent. In past controversies, the NFL has issued a decision and then played defense in court. In this case, the NFL has opted to go on the offensive against the union and Brady.
The effort, on the surface, projects confidence in the league’s position. At a deeper level, it suggests real concern about how the NFL would fare in a forum more naturally favorable to Brady.
The document itself contains no clues or hints about the arguments that the NFL is anticipating. Instead, it seeks confirmation of the decision “under well-established principles of federal labor law.”
Inevitably, Brady and the NFLPA will file a lawsuit in a jurisdiction of their own choosing.
The NFL moved first, but, as expected, it looks like they’ll have company in going to federal court in the wake of Commissioner Roger Goodell’s decision to uphold Patriots quarterback Tom Brady’s suspension.
Jim Trotter of ESPN reports that Brady has authorized the NFLPA to go to federal court in an attempt to overturn the suspension.
There aren’t any other details about the filing, including whether or not the union will seek an injunction that would allow Brady to play while the case is being heard. If Brady does get an injunction and ultimately loses the case, he would have to serve the suspension later in the season or even in the playoffs should the Patriots advance that far this season. If he doesn’t go for the injunction, he’d serve the suspension while trying to recoup the salary he’d lose while out for four games.
With the NFL filing in Manhattan, we’ll also be keeping an eye out for where the NFLPA files their action. Minnesota has been the preferred location because Judge David Doty’s rulings have been favorable in the past and the NFL’s desire to avoid that venue will likely add to the legal proceedings that will unfold in the coming weeks and months.
The Steelers will have running back Le’Veon Bell back a week earlier than expected after Tuesday’s announcement that his suspension has been pared down to two games after settlement talks between the league and the NFLPA.
In a statement about the decision, Steelers General Manager Kevin Colbert didn’t concentrate on that aspect of the decision. Colbert instead focused on the need for Bell to avoid further off-field issues.
“As I have stated before, we were disappointed in Le’Veon Bell’s actions last August,” Colbert said in the statement. “Le’Veon made a mistake and now he must learn from his mistake and focus on eliminating distractions from his life. We look forward to continuing to work with Le’Veon to try to help him reach his full potential as a person and as a player.”
Bell will practice with the Steelers during camp and is eligible to play in the preseason before starting his suspension in the first week of the regular season.
At some point over the past few weeks, I considered the possibility that the courtroom portion of the Tom Brady saga could be initiated not by the NFL Players Association but by the NFL. I made a mental note of it, vowed to write about that possibility, and then forgot to do it.
The reminder came today, via the report from Scott Soshnick of Bloomberg that the NFL has filed a pre-emptive lawsuit in federal court in Manhattan, seeking affirmation of the outcome of the Brady appeal.
Although I’ve yet to see the documents (the ask has been made), I’m certain that the NFL filed a case seeking what’s known as a “declaratory judgment” under the Federal Arbitration Act, explaining that a controversy clearly exists on the viability of Goodell’s final ruling in the Brady appeal and asking the court to determine the parties’ legal rights.
It’s not entirely uncommon, but it’s a very aggressive maneuver. As a practical matter, it potentially short-circuits the efforts of the NFLPA and Brady to file in Minnesota (with Judge David Doty presiding) or Massachusetts (with Judge Pats Fan presiding), where the ruling likely would be more favorable to Brady.
Whether through pre-emptive lawsuits or otherwise, forum shopping happens all the time in the legal profession. Part of securing the best outcome for a client is picking the best court for attempting to secure that outcome.
Still, there’s something that feels a bit unseemly about the NFL’s effort, creating a clear sense of coordination between Goodell the supposedly independent arbitrator and Goodell the chief executive at 345 Park Avenue. The ruling, which is required to be made “as soon as practicable” by Goodell the arbitrator undoubtedly was delayed long enough for Goodell the executive to ensure that his lawyers would be able to file immediately a lawsuit calling “shotgun” on the resolution of the legal rights.
The question now becomes whether the NFLPA will proceed with its own lawsuit, and if so whether one of the two judges will defer to the other one.
On Monday, we shared a couple of tweets that Jets wide receiver Brandon Marshall sent from Jamaica over the weekend making reference to the amount of marijuana smoke in the air around the island.
One of them was directed to the NFL’s Twitter account with Marshall writing that he’s an occasional wine drinker and asking for the league’s help because he appeared to be worried about failing a drug test because of secondhand inhalation. At an event on Tuesday, Marshall was asked about the tweets and said he was “just having fun” after noticing the constant smell of pot in the air.
“I was at my sister’s wedding and I was just thinking about it because you hear about these cases all the time,” Marshall said, via Newsday. “I was just kidding around. It was like everywhere we would walk. I walk into my room after the day is over and it was like, ‘You smell that?!’ Or you’ll just be on the bus and the driver smells like it. I was like oh, man, this is crazy.”
The NFL raised the threshold for a positive marijuana test to 35 ng/ml in the updated drug policy, which should be high enough to keep Marshall and any other player exposed to secondhand smoke from failing a drug test.
In his effort to make a bad situation better, Patriots quarterback Tom Brady had somehow made it worse.
The 20-page, single-spaced ruling from Commissioner Roger Goodell explains that, in materials submitted by Brady only days before the June 23 hearing, Brady admitted that he destroyed the cell phone that would have contained text messages sent and received during the time period most relevant to the #DeflateGate controversy.
Although characterized as Brady’s habit when purchasing a new cell phone, Goodell’s ruling explains that Brady knew that Ted Wells and company wanted to examine the phone that was coincidentally destroyed and replaced on March 6, the same day that Brady met with Wells. Brady, per Goodell, never suggested that the cell phone had been (or would be) destroyed during that meeting.
It’s a very bad look for Brady, and it’s a highly questionable tactic to affirmatively admit that the phone was destroyed in materials submitted to Goodell in connection with the appeal. As a result, Brady’s receipt of bad advice or his deliberate decision to ignore good advice has now extended from the decision not to accept the invitation to allow lawyer/agent Don Yee to personally review the text messages from the phone to the decision to admit that the cell phone was destroyed.
What benefit does Brady derive from disclosing that in the appeal? Even if it’s his habit to get rid of the phone and the data card within it whenever getting a new phone, that habit must yield to an ongoing investigation in which the contents of the phone and the data card have been deemed to be relevant. And so it’s reasonable to assume that Brady was trying to hide something.
Moreover, the decision to destroy the phone under those circumstances confirms the stereotypical “I do what I want” attitude that a multi-million-dollar quarterback with a supermodel wife and a house with a moat would be expected to project. The decision to admit the destruction of the phone in paperwork aimed at contesting the suspension suggests that Brady was represented by the law firm of Moe, Larry, and Shemp.
Apart from the relevance that the destroyed cell phone may or may not have to the looming legal challenge, this news turns the tables dramatically in the court of public opinion. With nothing in Goodell’s 20-page ruling hinting at the same kind of flaws that were lurking in the 243-page Ted Wells report, it’s going to be very difficult for the #FreeBrady crowd to find a cob of corn into which they can sink their teeth.
But if there’s another side to this story, Brady and company need to disclose it, quickly. Before they do, they need to be certain that whatever is said will actually make this very bad situation better.
The wait for linebacker Vontaze Burfict’s return to the field will go on a little longer.
The Bengals announced Tuesday that Burfict has been placed on the physically unable to perform list. Burfict had microfracture surgery in January after last year’s season-ending knee surgery and Bengals coach Marvin Lewis said in May that he expected the linebacker to rehab all the way through the summer, so it’s not an unexpected move.
Cincinnati added A.J. Hawk as a free agent this offseason and he worked with the first team in Burfict’s place during spring work. With Burfict looking like a candidate for the regular season PUP list, he may be in that spot for a while.
The Bengals also placed first-round tackle Cedric Ogbuehi on the non-football injury list because of the torn ACL he suffered while playing football for Texas A&M. Defensive end Margus Hunt (back) and linebacker Sean Porter (torn ACL) will also open camp on the PUP list while wide receiver James Wright has been waived/injured with a knee injury that is likely to require surgery. Wright will revert to injured reserve if he goes unclaimed on waivers.
The Saints have decided that they no longer want to employ linebacker Junior Galette. But that doesn’t mean coach Sean Payton regards Galette as unemployable.
Payton appeared on Tuesday’s PFT Live on NBC Sports Radio, and I asked what he’d tell another coach who is considering signing Galette.
“You are going to get a guy that gives great effort,” Payton said. “He is someone that works hard, he’s passionate, you know I love that about him. He plays with passion. I think the key thing in the area that I get frustrated with myself is just making sure that there’s that communication, like ‘Hey here’s what we’re doing, here’s the expectation level.’ And look, guys are going to make mistakes, you know all of us are and at the same time I think it just really got to a point where we felt for this upcoming season it was a decision we had to make.”
Payton mentions he has had success with players who didn’t work out elsewhere, mentioning Anthony Hargrove as a guy who “battled a handful of demons” before flourishing in the fleur-de-lis.
“I think it’s about the fit,” Payton said, “and listen I would be more than happy to visit with another coach or G.M. with regards to signing Junior. You want to see him do well. I want to see him do well and have success and realize all his dreams.”
Payton also explained that “a series of things” contributed to the decision to move on from Galette.
“I think when it’s all said in done there was more expected off the field,” Payton said. “There were too many times there were some inconsistencies, some things that took place where we didn’t feel comfortable as a club. Obviously when you write a check like that and make a commitment like that you have a long-term vision. Certainly we did. That same vision we had when we signed Junior as a rookie player. Shoot, as a head coach you feel like you failed because you take a vested interest him having success and seeing him accomplish all the things you want. Yet at the same time there is team element that we felt was really paramount, and it was really in the best interest for in what we felt going forward for our team.”
Galette still faces potential league scrutiny for a paid of off-field incidents, which could prompt a team to take a wait-and-see approach to signing him. Also, a head coach or G.M. will likely want to conduct plenty of other research before giving the guy who squandered his roster spot in New Orleans a second chance.
There were reportedly settlement talks between the NFL and NFLPA regarding Patriots quarterback Tom Brady’s suspension appeal, but we learned on Tuesday afternoon that they were unsuccessful and that Brady remains suspended for four games.
Things have apparently gone better in the talks about reducing Steelers running back Le’Veon Bell’s three-game suspension. Jarrett Bell of USA Today reports that the suspension has been reduced to two games as a result of settlement conversations following the running back’s appeal.
Bell was arrested last August and charged with DUI and marijuana possession. Under current NFL policy, first-time DUI offenders are subject to a two-game suspension and the marijuana possession likely led to the additional game. Patriots running back LeGarrette Blount was with a member of the Steelers and in Bell’s at the time of the arrest and was suspended one game for his marijuana possession charge.
Bell will miss the opener against the Patriots and a September 20 game against the 49ers before becoming eligible to return in Week Three against the Rams.