With the Tom Brady appeal resolved but the case far from over, a question remains regarding whether the controversy can be settled. In his Wednesday morning silence-breaking Facebook post, Brady makes it clear that the ball is still in the NFL’s court.
“I authorized the NFLPA to make a settlement offer to the NFL so that we could avoid going to court and put this inconsequential issue behind us as we move forward into this season,” Brady said. “The discipline was upheld without any counter offer.”
While no formal, written counter offer may have been made, PFT reported last night that the NFL was willing to drop the suspension by “at least 50 percent” if Brady: (1) admitted to having knowledge of whatever John Jastremski and Jim McNally were doing to the footballs; (2) admitted to failing to cooperate with the Ted Wells investigation; and (3) apologized.
Because Brady wasn’t willing to admit to anything, and given his position that no counter offer was made, it’s likely that the league’s lawyers simply articulated to the NFLPA’s lawyers the general terms the NFL would need in order to settle the case. This happens all the time in litigation, with loose offers floated in a way that isn’t official or binding.
It happens for a variety of reasons. In some cases, a party to litigation doesn’t want to be squeezed away from a position through further negotiations. If, for example, someone wants $100,000 to settle a personal injury lawsuit, an official offer to settle for $100,000 guarantees that the back-and-forth ritual will force the number lower. So the lawyer says something like, “If your client would offer $100,000, my client would accept that. But my client is not officially demanding $100,000.”
The triple-dog-dare-style etiquette of offer-and-counteroffer routinely results in disputes over what was and wasn’t offered. In this case, the NFL may have never officially and formally offered to cut the punishment at least in half in exchange for Brady crying “uncle.” But we stand fully by the notion that the NFL communicated to Brady and company a willingness to resolve the case under those terms.
Moving forward, more settlement talks are inevitable — especially since most federal judges require them to happen. Some federal judges get personally involved in the settlement efforts, which can be very effective when a hard-headed litigant hears from the person wearing the black robe what will happen next if the case isn’t resolved voluntarily.
Still, if Brady refuses to admit blame of any kind, it becomes very difficult for any deal to ever be done.