Brady had duty to “reasonably cooperate,” whatever that means

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With lawyer Jeffrey Kessler joining the legal team that will be challenging quarterback Tom Brady’s four-game suspension, Kessler’s recent track record has resulted in, for some in the media, a presumption that Kessler will dramatically shrink if not completely obliterate Brady’s quarter-season banishment.

Apart from the fact that Kessler isn’t undefeated against the NFL and/or its teams (he lost the high-profile, shirtless-driveway-sirups Terrell Owens case from 2005), Kessler’s hands will be tied in the current case by the things that already happened before Brady and his agent, Don Yee, decided to involve the NFL Players Association.

Kessler, for example, would have strongly advised Brady to say nothing publicly prior to being interviewed by the league. That would have avoided the awkward and unhelpful press conference from January 22 and the less awkward but equally unhelpful pre-Super Bowl interview with NBC’s Bob Costas.

Kessler also presumably would have advised Brady to cooperate with the league’s request for text messages and emails.

While not spelled out in the Collective Bargaining Agreement, the NFLPA will concede, we’re told, that players have a duty to “reasonably cooperate” with investigations. Ted Wells explained in persuasive fashion during his Angry Ted Wells conference call from Tuesday that more-than-reasonable concessions were made to Brady, in order to protect the privacy of the contents of his phone.

“I want to be crystal clear,” Wells said Tuesday. “I told Mr. Brady and his agent I was willing not to take possession of the phones. I said, ‘I don’t want to see any private information.’ I said, you keep the phone, you, the agent, Mr. Yee you can look at the phone and you can give me documents that are responsive to this investigation and I will take your word that you have given me what’s responsive.’ And they still refused.”

It will be difficult if not impossible for Kessler to overcome the reasonable nature of Wells’ offer. Which means that Kessler will need to come up with arguments against the suspension that operate independently of Brady’s failure to cooperate.

Even then, the suspension could partially survive based on the failure to cooperate, which separately amounts to conduct detrimental to the league. And that could have been avoided if Kessler and/or NFLPA executive director DeMaurice Smith had been involved.

36 responses to “Brady had duty to “reasonably cooperate,” whatever that means

  1. Just a quick notion. If they have texts between McNally and Jastremski, how/why do they not have any of their (possible) correspondence with Brady? Texts don’t exclusively exist on just the sending phone. Am I missing something obvious here?

  2. Did Goodell and the league office give up their phones during the Mueller report.. Nope only the phone they use when they work.. No personal phones or personal emails..

  3. Maybe they can find some odd-ball technicality to escape punishment … but there’s no way to escape the obvious facts. The Pats have cheated for years … and lots of people knew what was going on. Everything they did is tarnished. All the wins … and the championships … everything. It all has to be viewed through the prism of cheating. That’s their real legacy. And it’s an ugly one.

  4. Of course Br*dy does not have an obligation to turn over his personal phone for this investigation if he chooses not to. At the same time, the NFL is under no obligation to let Br*dy play if he doesn’t follow the rules of the NFL workplace. Playing in the NFL is a right, not a privilege. He has a constitutional right to avoid self-incrimination but not a constitutional right to insist that his employer allows him to work while he flaunts their rules.

  5. Tom didn’t give his phone up because he knows he had a part in all of this. That’s like subjecting yourself to a lie detector test and you already know you’re guilty.

    Tom cheated, we know this. However much advantage it gained and how long it’s been happening will forever be unknowns. Take the suspension and take these *’s Pats fans.

  6. Kessler will try to grandstand some other aspect of the issue in order to avoid dealing with it. That’s why the “Do you really think Tom Brady is guilty?” campaign started a couple days ago.

  7. Why the hell is Wells defending himself/the report he submitted. This alone shows how flawed he report is. If he felt confident the report was 100% accurate, he would have said nothing or something along the affects of “I’m sticking by my report”.

    Why does he need to defend it?

    Page 228 of the Wells report – “In sum, the data did not provide a basis for us to determine with absolute certainty whether there was or was not tampering as the analysis of such data ultimately is dependent upon assumptions and information that is not certain.”

  8. Remember when all the former Jets employees in the League office claimed this would only take a few weeks because the Patriots were obviously guilty, only the evidence fell apart and Wells had to spend millions over 3 months trying to rebuild their conspiracy theory, before ultimately claiming that people refused to cooperate by not showing up for their 37th interview? That was funny.

    (And if you wonder why the league office is full of former Jets employees, it’s because only successful teams and staff stick together. Imagine if the NTSB were run by former pilots that had all crashed their planes).

  9. Gostkowski did not surrender his phone during the investigation into the kicking balls. no discipline whatsoever. That idea has no leg to stand on.

  10. Well, it’s pretty hard to argue that Brady didn’t fail to cooperate, so I’d give him two games for failing to cooperate. And there’s no reason not to cooperate unless you’re guilty, so I’d give him another two games for masterminding the football deflation. Four games total. Next case!

  11. Is an employer requesting personal phone records reasonable, no matter what kinds of protections they say they will put in place?

  12. Fan loyalty aside. Do any fans of other teams really trust that the NFL office is competent considering their track record of mishandling and having there findings often overturned?

  13. Yes, Brady is not legally required to give Wells information from his phone (even if offered the ability to pick the information, which is crazy). But when he refuses to do so when other people in the investigation give theirs up, and NFL personnel have given theirs up in prior investigations, it is a refusal to cooperate and essentially an admission of guilt. All Brady had to do was go through the texts and emails and pick a few that support his cause, ignore ones that prove he’s guilty, and this whole thing would have gone away.

  14. I have a feeling the suspention will be over turned but then Brady will get seriously injured against Pittsburgh by the football gods – Im talking Joe Theisman style.

  15. Kessler has been retained to try and mitigate the penalties imposed by the NFL……If Brady and Bob Kraft weren’t so arrogant this situation would have been resolved quickly…

    By the way, Brady was not asked to turn over his phone….this is a myth being perpetuated by Don Yee….

  16. The issue I have with all this is that the NFL – or rather their minion – get to decide what is reasonable cooperation?

    Sure, they’re the employer, sort of. This isn’t a normal employment situation.

    I agree that it doesn’t look good, or make things easier for Brady for refusing to hand over his communications. He obviously should’ve hired an attorney sooner than this to advise him.

  17. Unlike many people on here, I am a reasonable man. I can change my mind when provided with further information than I had used to form my original opinion.

    I was adamant that Brady was within his rights not to turn over his phone. IF, and that’s a big IF, Wells’ request was worded exactly as he now says-That they could give him documents that are responsive to the investigation and that he would take their word that they have given him what’s responsive, without actually turning over the phone, than I am going to rethink my position.

    That actually seems like a fairly reasonable request the greatly reduces any infringement on Brady’s privacy, and Brady would have been well advised to comply.

  18. It means that one must act as a reasonable person would in the same or similar circumstances.

    If my employer had reason to believe I had done something to adversely affect the employers’ interests, I would be required to cooperate in the investigation or I would be canned.

    It’s simple.

  19. Tom Brady could not provide his electronic data. Here is why:
    A) Tom Brady turns over his electronic data and the investigation now presumably has all the evidence needed to make the case to prove Tom Brady either innocent or guilty (whether or not you think the data reveals he is innocent or guilty is up to you…)

    B) Tom Brady ‘picks and chooses’ the electronic data he and his agent, Don Yee, feel are responsive to the investigation (as requested by the investigation and Ted Wells). This seems easy enough, almost too easy. Now you may ask, “Why not submit a handful of text messages to the investigator?” Tom Brady can NOT ‘pick and choose’ which text messages (electronic data) he submits to the investigation because anything submitted will likely be checked and balanced by the investigator with all of the electronic data and messages that the investigation already has in their possession to ensure everything ‘matches.’ Any phone calls or text messages that the investigators already had in their possession (from the phones of McNally and Jastremski) that was not submitted by Tom Brady would create more doubt, concern, and appear that Tom Brady was attempting to hide something.

  20. They’ll protect Brady’s privacy who is a world wide celebrity when they can’t even protect a bag of footballs?!! Brady did not trust them and who can blame him? They’ll leak and twist whatever is in the phone and cherry pick info to fit their assumptions. The NFL lack of character as evidenced by leaks that berate the Patriots is enough to suspect their own motivation. Fish don’t give out baits.

  21. I can think of one really good reason for Brady not to turn over his cell phone – a little thing called the 4th Amendment.

    Don’t get me wrong, I think he’s guilty. However, I also think he was well within is rights to not turn over his phone.

    If Brady (or anyone) agrees to give his employer access to his cell phone, then what’s next? Are they then going to ask to comb through all of his emails? How about his home phone? Perhaps they’d like to go to his house and open all his mail? Where does it end?

    I’m sure all the people on this board saying that Brady should have let Wells go through his phone would be singing a different tune if it were THEIR privacy that was being invaded.

    Wells wasn’t able to look through Brady’s cell phone without his permission because to do so requires a court order. There’s a reason for that.

  22. It’s great to see people assume the patriots are guilty. I personal couldn’t care less either way, I personally disliked the patriots after their spy gate (or whatever they called it) scandal, but you know I was in my teens and didn’t know all the info, I didn’t have access to the reports or the evidence. I want the patriots to fail on my complete hate for them beating the rams so long ago and for being great, but…After reading all the reports and hundreds of articles I don’t understand how some people can say definitively he/they cheated, the evidence just isn’t there and the biased viewpoints are very apparent.

  23. I was adamant that Brady was within his rights not to turn over his phone. IF, and that’s a big IF, Wells’ request was worded exactly as he now says-That they could give him documents that are responsive to the investigation and that he would take their word that they have given him what’s responsive, without actually turning over the phone, than I am going to rethink my position.
    ===
    Yep. It’s probably reasonable if and only if:
    1) Brady can trust Wells to maintain confidentiality.
    2) Brady can trust Wells to accurately report.
    3) Wells can trust Brady to accurately respond.
    4) Brady can believe that there will be no followups.

    If one of those fails, then Wells and Brady are at an impasse for the provision of personal electronic records. Civil cases would have procedures for dealing with that impasse, but this wasn’t a civil case.

  24. Let’s assume Brady did exactly as Wells asked. He turned over text and email related to the case, which is probably what they already have because they have the texts and emails of the corresponding party. What is to stop Wells, or anyone else, from saying he didn’t turn over everything? Unless Wells was there at the time looking at the texts/emails, he has no knowledge if anything was not turned over. That still allows room for speculation, and not in Brady’s favor.

    Also, having seen how Wells mischaracterized (in their view) texts from the assistants, wouldn’t there be an assumption that he would do the same to his texts?

  25. What’s reasonable for one is not reasonable for another. He answered every question. That should be enough. He was smart not to provide emails and texts. You see what they did with the other ones from McNally. Misrepresented and put them in the context that they wanted.

  26. 2. Why Did The Wells Report Find No Fault With Any Of Your Employees? And When Will The Officials’ Punishments Be Announced?

    Combing through the Wells report, one can reasonably deduce that Jim McNally took the bag of game balls into a bathroom and likely took some air out of the footballs. It’s likely, if not completely proven. For that assumed action, you have punished Tom Brady with a four-game suspension, and you’ve taken a first- and fourth-round pick away from the Patriots, whom you also fined a record $1 million. As a result, even those who were originally bloodthirsty to see the Patriots go down in flames have now taken a step back and reasoned that you went too far.

    But that’s a separate issue from the one at hand, because, Roger, the Wells report details a multitude of your employees proven to have more likely than not done a poor job on a number of occasions.

    To wit:

    Referee Walt Anderson
    He was warned before the game that the Colts had suspicions about the Patriots’ deflating footballs, yet he did not record the pregame PSI measurements (therefore voiding all scientific evidence in your report) and he also LOST THE FOOTBALLS for the first time in his 19-year career. When he finally found the footballs, they were on the field, and he said, “OK, let’s kick it off.” That was after being warned about funny business with footballs. On Wells’ conference call, the lawyer said that nobody from the league took the complaint seriously. Walt Anderson figures to be the embodiment of that attitude, and his failure to ensure legal footballs were put into play should result in a serious fine.

    Dean Blandino
    The vice president of officiating in your football league lied publicly. It presents a bad image for the league when the man in charge of the officials, aka the arbiters of the game, is telling lies to the public. Have you ever lied to us, Roger?

    Bill Leavy’s referee crew
    Bill Leavy was in charge of the crew which inflated footballs to 16 PSI in the Patriots’ Week 7 game against Jets. We know now that you take the PSI of footballs very seriously, and surely, John Jastremski would have had no ulterior motive to lie about the PSI of the footballs in October, long before he or anyone else was ever under investigation for this very serious matter. Leavy, the referee that night, was interviewed by Wells’ team, but Wells left out any mention of what came from that interview. So, Roger, when will you announce the suspension for Leavy? He put improper footballs into use in an NFL game, and that just cannot happen. PSI is too important

  27. The “Spy the Lie” folks, very well respected experts on detecting lying and misleading behavior, did an analysis of the press conferences of Bill & Tom in January, and wrote a blistering analysis of their deception that every Pats fan should read. But they won’t. The rest of us can be enlightened. Search for (Philip Houston Bill Belichick) it on Google – it’s well worth the read.

    I would love it if Kraft, (let’s call him “the Enabler” to go along with “the Deflator”), actually does sue the NFL. What an idiot to hold to the ‘there’s no proof line.’ As so many have said – if they’d simply accepted responsibility and apologized, it’d be a non-issue.

  28. Mike, myself, and just about everyone else has a personal stake in this. We all work for someone else. If something went awry at work, would we want our employer demanding an account of our personal phone calls? Of course not!!! It is an unreasonable overreach completely out of proportion to the offense. And if the NFL is punishing Brady more because he refused to do this, it is retaliation.

    I think this is far more likely to be a weak point for the NFL than for Brady in an arbitrator’s eyes.

  29. And then there’s just so much trust that the league wouldn’t leak anything …..

    Don’t blame him a bit , there’s the reason all the leaks of misinformation used against him and the team
    And never corrected

  30. Anyone asking why they need his phone dont realize the correspondence isnt just looking at jj & jm. I totally disagree that trusting Brady (a cheater and liar) and his agent (gets paid for his success) regarding what is and isnt acceptable forfieture. They need to hand over the phone and watch while the portions that are work related are accessed. Brady’s lawyers could monitor the reseach to insure privacy is not invaded and the league could still gather the information that is work related (all correspondence with Belicheat, Adams, Kraft and players.

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