Not long after PFT obtained a copy of the Tom Brady appeal hearing transcript, which was filed in federal court Tuesday by the NFLPA, I scrolled through the document to see how many pages I’d have to read.
When I got to the last page — 456 — I noticed a comment from NFL outside counsel Gregg Levy, who served as the legal advisor to non-lawyer arbitrator/Commissioner Roger Goodell.
“In your briefs, the Commissioner would like you to address the question of whether he should hear from Mr. McNally and/or Mr. Jastremski before resolving the issue, before deciding the matter,” Levy said.
At footnote 7 (where the good stuff always is hiding) of the 20-page ruling on the Brady appeal, the Commissioner explains that the NFLPA took the position that, because the two Patriots employees who exchanged the troubling Beavis-and-Butthead text messages denied a scheme to deflate footballs, there was “no need to call them as witnesses.” The NFL took the position that, since the NFLPA was questioning the findings of the Ted Wells report based on the interviews of McNally and Jastremski, “it was incumbent on them to call both witnesses.” The NFL also argued that the failure of the NFLPA to call McNally and Jastremski as witnesses requires an “adverse inference” that “their testimony would have confirmed Brady’s involvement.”
But that’s not what Levy requested. Levy wanted to know whether Goodell “should hear from” the witnesses before deciding the case. The NFLPA believed there was no need for it. The NFL essentially said that, because the NFLPA didn’t call them in the first place, the Commissioner should assume that whatever they said would prove Brady’s guilt.
So why didn’t Goodell simply insist on their testimony on his own? While it likely wouldn’t have changed the outcome, since Goodell would have needed a very good reason to scrap the decision he’d already approved based on the multi-million-dollar investigation he’d already authorized, it would have been far more prudent — and the record would have been far more clear — if the Commissioner had heard directly from them.
Making that testimony before Goodell even more important is the fact that Ted Wells wanted to re-question McNally because Wells and company inexplicably had failed to notice the controversial “deflator” text message before interviewing McNally the first time.
The fact that the NFLPA didn’t want them to testify suggests that the NFLPA was concerned about what they would say. But why didn’t the Commissioner — who wasn’t bashful about asking his own questions of Tom Brady — decide to pose his own questions to McNally and Jastremski?
If the Commissioner was intent on getting to the truth, he should have at least been curious to hear what they had to say, and to observe their demeanor while they said it.