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.