At a time when the NFL and NFL Players Association can’t agree on much when it comes to the Tom Brady suspension and ensuing litigation, it shouldn’t surprise anyone that they also disagree on the specific degree of involvement the league concluded that Brady had in the alleged scheme to deflate footballs.
The NFLPA’s 15-page brief aimed at overturning the suspension explains that Brady’s suspension arises from the quarterback being “generally aware” of the actions of two members of New England’s equipment staff. The union argues that “no NFL policy or precedent provided notice that a player could be subject to discipline for general awareness of another person’s alleged misconduct.”
The NFL’s 15-page submission explains the behavior much differently, claiming that Brady “‘knew about, approved of, consented to, and provided inducements’ in support of a scheme to tamper with the game balls used in the AFC Championship Game.”
The dispute as to Brady’s conduct isn’t surprising, because the NFL has used both characterizations over the past three months. The Ted Wells Report finds that Brady was “at least generally aware” of the alleged deflation activities. The letter from executive V.P. of football operations Troy Vincent to Brady communicating the four-game suspension uses the same language of the report in justifying the punishment.
But the language changed in the ruling on appeal, made much stronger and more forceful by Commissioner Roger Goodell than the terms used by Wells and adopted by Vincent: “In short, available electronic evidence, coupled with information compiled in the investigators’ interviews, leads me to conclude that Mr. Brady knew about, approved of, consented to, and provided inducements and rewards in support of a scheme by which, with Mr. Jastremski’s support, Mr. McNally tampered with the game balls.”
As noted back in May, the Commissioner’s openly-stated quest for “new information” during the Brady appeal made for a confusing appeal process, because most appeals proceed based only on the record of evidence and information that led to the decision that is being appealed.
“I look forward to hearing directly from Tom. If there is new information or there’s information in helping us get this right, I want to hear directly from Tom on that,” Goodell had said in May, creating the impression that, to the extent the extensive record of evidence developed by Wells and relied upon by Vincent would be expanded, it would be expanded only for the potential benefit of Brady.
Instead, the “new information” came only from the notion that Brady’s refusal to surrender his cell phone at some point became an inability to easily obtain (but not an impossibility to reconstruct) the text messages on the phone he was using the relevant time period. The ensuing mischaracterization that Brady had expunged completely the opportunity to determine whether he said anything incriminating via text coupled with the mischaracterization of his testimony regarding conversations with John Jastremski somehow became an elevation of “generally aware” to “knew about, approved of, consented to, and provided inducements and rewards in support of a scheme” to deflate footballs.
That’s not how most appeals work. Most appeals affirm the decision made below, reverse it, or vacate it and send it back for further proceedings. (If the “destroyed” cellphone was as big of a deal as the NFL made it out to be in the appeal ruling, that’s precisely what should have happened, with a directive to possibly enhance the discipline imposed on Brady.) In this case, the outcome remained the same but the language became stronger for one apparent reason: To make the suspension better suited to survive in court.
Although the NFLPA has yet to attack this specific point because the NFLPA continues to rely on the “generally aware” language from the Wells report and the Vincent letter, it’s safe to say that, in three days before Judge Richard M. Berman, there will be plenty of discussion about how and why the description of Brady’s misconduct changed so dramatically.