Perhaps the most glaring problem for Patriots quarterback Tom Brady in the Wells report comes not from anything Brady said but from the things he didn’t say. Specifically, his decision to refuse to provide his text messages and emails constitutes a failure to cooperate with an investigation and, per NFL rules, conduct detrimental to the league.
On Thursday night, agent Don Yee addressed the decision not to provide the information on CNN’s A360 with Anderson Cooper.
“Without really getting into my communications with my client -- I have to observe attorney-client privilege -- but if you’re in a situation when it comes to disciplinary process when you’re generally assigned guilt and asked to prove innocence,” Yee said. “That’s number one. Proving innocence is essentially proving a negative, if you proclaim innocence. And so that’s a very difficult situation to put yourself in.
“Second, with the text messages, the scope that they asked for is actually very, very wide. I probably should have made the letter public that we received from the NFL’s lawyers. But in any event, if we would have provided the phone or the text messages -- you have to understand Tom is also a member of the union, the Commissioner’s office actually does not have any subpoena power. If a prominent player were to provide all of their private communications absent a subpoena, that sets a dangerous precedent for all players facing disciplinary measures.
“Finally, any information we would have provided, and the Wells investigative team did ask us to go through Tom’s phone on our own and provide them with information if we chose to go that route. But as you might surmise if we would have chosen to go that route, any information we would have given them, they probably would have had skepticism about anyway.”
Regardless of whether the NFL presumed guilt or not, cooperation is mandatory. Failure to cooperate constitutes conduct detrimental to the league. And if Brady were indeed innocent (as Yee reiterated), why not do everything possible to prove it?
Also, it’s misleading for Yee to rely on the lack of subpoena power. The NFL has absolute employment power over all players. Whatever it requests as part of its investigation, the NFL gets. If the NFL doesn’t get it, a separate basis for discipline arises.
The “dangerous precedent” to which Yee refers already has been set on countless occasions, when players facing discipline traveled to Manhattan to meet with the Commissioner despite the fact that the Commissioner lacks the subpoena power to force them to show up.
Lastly, the idea that Brady didn’t provide the requested information because the NFL “would have had skepticism anyway” is laughable. It doesn’t matter how the NFL reacts to it; Brady has an absolute duty as a player in the NFL -- and the recipient of millions of dollars per year to be a player in the NFL -- to cooperate. He failed to cooperate. And no amount of flimsy excuses from his agent is going to change that.
The reality remains that Brady opted to defy the league and guarantee additional discipline over providing the requested information. Which invites fair speculation over what exactly he is hiding on that phone.