The final brief submitted by the NFL in support of the decision to suspend Patriots quarterback Tom Brady reiterates the same arguments the league already has made. In a footnote on the final page of the brief, the NFL makes a curious claim.
As to the league’s argument that the Commissioner has the authority under the Collective Bargaining Agreement to consider new evidence on appeal (e.g., Brady’s “destroyed” phone) even if that evidence was not considered in connection with the original disciplinary decision, the NFL contends that the Commissioner also had the authority to increase the suspension on appeal.
“The CBA provides that, in appeals of fines imposed for unnecessary roughness or unsportsmanlike conduct on the playing field with respect to another player, the discipline ‘may only be affirmed, reduced, or vacated by the hearing officer, and may not be increased,'” the NFL asserts in footnote 4 at the bottom of page 8 of its latest legal brief. “The CBA imposes no such limitation on the Commissioner’s decision in appeals such as this one involving discipline imposed under Article 46, Section 1(a) for conduct detrimental to the integrity of the game.”
OK, fine. Then why didn’t “The Enforcer” increase the discipline once learning that Brady had “destroyed” his phone?
As we noted on July 29, “Goodell calls the development ‘very troubling’ at page 13 of the ruling, accusing Brady of a ‘deliberate effort to ensure that investigators would never have access to information he had been asked to produce,’ of ‘conceal[ing] potentially relevant evidence to undermine the investigation,’ and of ‘conceal[ing] for months that he had destroyed the cellphone requested by the investigators.’ In other words, Goodell determined that this new information meant Brady hadn’t simply failed to cooperate with the investigation but that he had affirmatively obstructed it. Which, if true, should have resulted in new and enhanced penalties.”
The failure to increase the suspension, if as the NFL claims Goodell had the power to do it, bolsters the notion that “Tom Brady destroyed his phone” was a calculated P.R. ploy that could be sold while brushing off the opportunity to reconstruct the text messages on the destroyed phone based on the list of phone numbers with which Brady communicated. If the discipline had been enhanced, the NFL’s refusal to attempt to track down messages sent to and received by Brady from 28 team and league personnel would have been more glaring, and it would have received far more scrutiny from the media and, more importantly, from the federal judge considering whether to uphold or scrap the suspension.