In the aftermath of last week’s decision by former Dolphins offensive line coach Jim Turner to sue “independent” investigator Ted Wells and his law firm for defamation, some have suggested that Patriots quarterback Tom Brady should do the same thing.
Apart from the fact that filing a lawsuit against Wells and his firm would continue a controversy that Brady surely would like to see end, it could open multiple cans of worms for Brady, as illustrated by the decision of Roger Clemens to sue Brian McNamee for defamation based on things McNamee told former U.S. Senator George Mitchell during his investigation regarding steroids use in baseball. The Clemens lawsuit against McNamee sparked years of litigation arising from Clemens’ claims against McNamee and McNamee’s claims against Clemens, along with a prosecution of Clemens for perjury based on testimony given to Congress.
A lawsuit against Wells and his firm also would expose much of Brady’s personal life to scrutiny, since the playbook for defending against a claim that false statements injured a person’s reputation include exploring every nook and cranny of the plaintiff’s life. Also, any claim that the alleged lies told about Brady caused him emotional distress or mental anguish would make a wide range of personal questions fair game during the discovery process, including questions about the impact of the emotional distress or mental anguish on all aspects of his relationship with his wife and an inquiry regarding whether he has sought psychological assistance to deal with the situation.
Also, because Brady is a public figure, a higher standard applies to him. He must show not only that the statements made about him were false, but that the statements were made with knowledge that they were false or with reckless disregard as to their truth or falsity.
So any defamation case filed by Brady likely would generate various types of private information, and Brady then would have to worry about the private information becoming public. Throw in the possibility that Brady may say something under oath during his defamation case that could conflict with something he previously said under oath during his appeal hearing and the potential criminal consequences of such a contradiction, he’s better off taking the high road and moving on. Unlike Jim Turner, Tom Brady has far less to gain by suing Ted Wells — and much more to lose.