Uncorrected mistakes could hurt NFL’s credibility with appeals court


In courtroom proceedings, lawyers routinely make mistakes when arguing zealously for a client’s position. Whether it’s because of unfamiliarity with the facts (especially when the lawyer presenting an appeal didn’t handle the underlying case), poor recall in the heat of the moment, excessively exuberant efforts to win, or a deliberate attempt to slip one through the five hole of a black robe, lawyers screw up sometimes.

The question becomes what they do about it after realizing that a mistake was made.

As several members of the media have pointed out, and as Sally Jenkins of the Washington Post has crystallized appropriately, NFL appellate counsel Paul Clement made multiple mistakes when explaining the facts of the Tom Brady case to the U.S. Court of Appeals for the Second Circuit. The mistakes, as far as the public knows, have not been corrected.

The biggest blunder at the hearing came when Clement suggested that Tom Brady explained his sudden uptick in communications with assistant equipment manager John Jastremski on the day after the 2014 AFC title game by saying that Brady merely wanted to talk to Jastremski about preparations of the game balls for Super Bowl XLIX, and nothing more.

“To say all of that was being done to prepare the Super Bowl balls, I think the Commissioner found that to simply not be a credible explanation to the conduct,” Clement told the court, via Jenkins.

But that’s not what happened. As noted back in August, Brady testified at the hearing before Roger Goodell on multiple occasions that Brady spoke to Jastremski because of the tampering allegations, too.

Clement flat-out got it wrong, in the same way Goodell did in his ruling upholding Brady’s suspension. Clement arguably now has an obligation to correct the mistake, by sending a letter to the appeals court (with a copy to Brady’s counsel) admitting the mistake and correcting it.

As explained by Jenkins, Clement made other factual misstatements in the written documents submitted to the appeals court. He claimed that Brady’s lawyers attended “many of the interviews” during the NFL’s investigation. In reality, Brady’s lawyers witnessed only Brady’s interview. Also, Clement said that Jim McNally repeatedly called himself “the deflator” in text messages sent “throughout” the 2014 NFL season. McNally used the term only once, however, in the months preceding the 2014 football season.

The NFL would say that it’s up to Brady’s lawyers to point out any errors in the written submissions or misstatements made in court. That’s true in any contested case, because in virtually every contested case mistakes like this are made. However, this specific case currently has not only a trio of judges but a jury of media members who are willing and able to hold the NFL’s feet to the fire, every step of the way. If the league’s lawyers aren’t buttoned up in their written or spoken presentations, they need to worry not only about Jeffrey Kessler but also about anyone else who may point out the flaws in a way that lands on the radar screen of the judges or their clerks.

63 responses to “Uncorrected mistakes could hurt NFL’s credibility with appeals court

  1. The NFL…misremembered? I’m stunned. The league BSed the Patriots like it did the Saints, Cowboys, and Redskins before? I am shocked and chagrined!

  2. I have no faith that either Jeffrey Kessler or the three appellate judges will realize the mistake and demand answers from the NFL, especially the judges. But I will be so happy to be proven wrong

  3. As amicus curiae will you be filing something with the Appeals Court on Brady’s behalf to point out the continued misrepresentations by the NFL. I certainly hope so. Thank you Mike for all you do in the name of Justice.

  4. Can’t wait to have this end…..One of the most active pre-FA days we have had and this comes up….

  5. And one of the Judges apparently thinks the evidence of a tampering scheme is “convincing, if not overwhelming” … even the Bought-and-Paid-for-Independent-Moustache could only drum up “generally aware of … more probable than not.”

    That’s really disturbing unless for some unknown reason it was a ruse. The alternative is we have a judge who either doesn’t believe in science or simply hasn’t done any meaningful research into the case.

  6. Good sir! The NFL does not make mistakes!

    Well… unless you count lying about the Ray Rice investigation, not even being able to define a “catch,” waiting until a multi billion dollar class action lawsuit started to form before taking any steps against head trauma, weekly game changing officiating mistakes that have to be acknowledged or lied about publicly, actively engaging in schemes with ownership to short change players on salary, illegally suspending Adrian Peterson for a year and then dragging their feet on reinstatement until the commissioner was almost arrested for it, a history of protecting domestic abusers sex offenders and at least 1 animal killer, the VP of Player Operations selling player information for profit….

    But I am positive they’re telling truth about this Brady situation and I won’t hear otherwise. Good day!

  7. Get ready nfl for the 1billion dollar law suit for defamation by that terminator named Tom Brady…..that Brady is not only the greatest QB to ever play the game…. But will soon be the only player to ever sue and win 1 billion dollars from the bro …. goodell is such an idiot …. Good riddance when he is fired

  8. Florio, would u comment on the chances the Patriots may have in getting their draft picks back? If u havexabdvi missed it, my apologies. Perhaps another poster would update me.

    I find it incredible thàt they hg avent been reinstated. Where’s the outcry?

    A Packers Fan

  9. Typical…..the league has lied so much they don’t even know what the facts are anymore

  10. “However, this specific case currently has not only a trio of judges but a jury of media members who are willing and able to hold the NFL’s feet to the fire, every step of the way.”

    Let’s also not forget the Courts of the Internets, who find everyone guilty until proven innocent.

  11. .
    So, now we’re expecting the NFL to tell the truth? That’s asking for the impossible.

  12. The nfl owners and nfl league management have continually show through their efforts to manage routine business and player conduct to be the laughing stocks of this nation and worldwide.

    Aren’t these billionaire owners supposed to be titans of industry with huge egos? Everyone is laughing at you and your ineptness!!!

    Rather than the LeBron James of lawyers, Clement practices as a flunky 1st year from a mail order law school.

    When they try to correct a mistake, they usually make it worse.

    They are just lucky that they can keep throwing money at a problem and not show their faces in public.

  13. its becoming clearer to me the Jaguars have a better chance to win a super bowl before this joke of a case is finished. What the HELL IS THE NFL DOING??? This is so beyond assinine. Mr Florio, i commend you on staying down the middle on this and not allowing the NFL to run Roughshod on Brady and the Pat’s. And I’m a damn Jaguars fan who suffered their worst loss of the season to this epic organization. But I’m not whining about the Patriots dominance. I’m
    Hoping Jax can mimmick the leadership and talent evaluators that Kraft has under him. It’s time to stop this silly game
    Of try to tarnish one of the best qbs in NFL history just to try and save face on how messed up the NFL was by allowing Ray Rice to get 2 games. Oh but weight! Deflating footballs is on the same level of PED’s? Right? So since the NFL will do nothing to Peyton manning, then if they are equal, then treat this Brady guy with a little more respect than this. For gods sake end this damn witch hunt. And to rival fans, it could one day happen to your qb! I don’t ever wanna see a class act like Blake Bortles go through this scam. And you wouldn’t want it eitjer. Time to call this a day, then Fire Goodell and his sickening paychecks.

  14. Kim Fields , lawyer extradonnaire, fired 4 times but magically promoted to Chief strategy officer, will most certainly be able to save the day for the NFL.

  15. This has been the biggest waste of time and money. The NFL has become a clown show. Give the patriots back their draft picks and move on from this bias attempt to appease the haters.

  16. Good article Mike (and Sally as well).

    Is anyone else wondering why everyone sits and watches Roger Goodell bank $34 million, and then not be able to effectively fulfill one of the primary functions of the job of the commissioner (which is why all of this lying is necessary to try to put lipstick on the pig)?

    It seems to me that the courts should reject the NFL appeal and send the owners a strong message that they need to find a person that is qualified to serve as the commissioner (and then allow the commissioner to do his job without all of the politics).

  17. grasping at straws here,anything to try and distract people over what’s actually happening in the courtroom which is *Brady’s lawyers are getting demolished from the overwhelming evidence against him and the judges are getting weary of the same old tired excuses and are getting ready to uphold the suspension as well as prosecute him for obstruction….it’s exactly what that s.o.b. cheater deserves too….let him serve his suspension from prison…..

  18. Gotta hand it to Goodell. He will do anything to keep the NFL in the news…even if that means he has to make a complete fool of himself.

    This is just more money in his pockets.

  19. Lawyers who lie and who do not face sanctions when the lies go uncorrected.

    Judges who find “evidence” of tampering overwhelmingly persuasive when every scientific review indicates that no such tampering occured.

    Manipulative, corrupt, and dishonest plaintiffs given higher accord than all others.

    What a hugely disappointing view of the US legal system.

  20. When you are a lawyer working on behalf of Roger Goodell, you play by Goodell’s rules, which means any truths that don’t fit the pre-determined narrative are tossed in the trash and replaced by outright lies that better make the NFL’s case.

  21. “Stupid” doesn’t have s legal argument, nor does it have a political party. The judges will toss the appeal simply because Goodell isn’t qualified to suspend anyone.

  22. It’s nice of you to give Clement the benefit of the doubt, but I don’t. Whatever the merits or demerits of each side’s cases, it’s offensive to common morality the way the NFL has repeatedly lied on the record in this case. Clement is just the latest hack to sign up for the dark side.

    I have zero expectation that the NFL will suddenly find a moral compass and step up to tell the court about their multiple “mistakes.”

  23. The NFL and their lawyers making mistatements or flat out telling lies. Those didn’t look like mistatements to me. They looked like lies designed yo make Brady look guilty. Dispicable behavior that hopefully will be recognized by the appeals court judges as such.

  24. And they question Brady’s credibility. Goodell and the league have been consistently deceitful throughout and it’s finally catching up with them.

  25. Maybe he called himself the deflator because of that one game when the refs overinflated the balls to 16 psi back in 2014 which had nothing to do with last year AFC championship game and I’m sure if you go years back and check every football player and staff phones you will find something

  26. Ah so you think the NFL has and strives for integrity?

    I think that is ridiculous

    To the judge who believes the evidence is overwhelming I say, Wake up you fool

  27. Good. Brady is going to see this witch hunt through and maybe for once, the guys carrying the big stick lose. Its a lot of legal fees, around 20 million, that the NFL could have put to better use for some charity. But no, they would rather burn that money and everybody’s time than trying to keep the case going just to vilify Brady and preserve the integrity of the shield which is a farce.

  28. So the NFL is ALLOWED to lie in court? But Brady is supposedly a cheater. Looks like we found the real cheater in this whole case

  29. Please, Brady’s lawyers got destroyed last week and this is all spin. Sally Jenkins is an opportunist who has a history of playing devil’s advocate for clicks. Stop being a Pats apologist, your readers are tired of it. How do you know how many times Brady’s lawyers were present unless you’re getting information from them?

  30. The media certainly wasn’t willing or able to hold the NFL’s feet to the fire for the first 8 months of this travesty, especially the first few months when everyone in the media jumped on the Patriot hating bandwagon and were trying to out do each other to come up with bigger rumors and falsehoods about what had happened. No one was searching for the truth or asking the hard questions back then. And honestly even now, it is a small handful of media members who are doing the heavy lifting to get to the truth. Most are content to sit back and just let it play out however it does, afraid to see how foolish to see what they wrote back then was. Thank God for real journalists like Sally Jenkins.

  31. NFL’s multiple-repeated misstatements on demonstrated facts = BARE-FACED LIES. And it’s disgustingly designed by wrongdoers with bottomless pockets who can’t admit the truth, to possibly hoodwink a judge or at least not completely lose in the court of public opinion.

    But if the NFL hadn’t lied about the data, hadn’t lied about Brady’s testimony, hadn’t dismissed the ref’s testimony on which gauge was used, and hadn’t broke the CBA’s requirement of a fair appeal & fair arbitrator, there’d be no case at all. So they have to keep lying now, caught in their own web of deceit.

  32. ChrisCicc says:
    Mar 8, 2016 11:42 PM
    When the judges sanction the NFL legal team, they’ll have no choice but to return the Pats draft picks


    The NFL hired one of the most respected lawyers in the country. He won’t be sanctioned, they’ll give him the benefit of the doubt.

    There’s also zero chance Pats get those picks back. Goodell might not be able to punish Brady so here’s his petty victory. kraft can’t sue

  33. idpfantasyfootball says:
    Mar 9, 2016 8:03 AM
    “…in the same way Goodell did in his ruling upholding Brady’s suspension.”

    Not everybody agrees that Goodell got it wrong.


    No matter how you feel about Brady’s punishment, there’s no denying that Goodell lied when giving his decision. The appeal transcript, which Goodell never wanted released, proves this. Brady’s team always wanted to have it made public.

  34. Those were not mistakes, they were intentional misrepresentations, first done to get public opinion on Goodell’s side and then again in court to pretend Goodell acted in good faith.

  35. In my opinion, Clement has an ethical duty to correct the misstatements he made during oral argument.

    The ABA’s Model Rules of Professional Conduct provide that a lawyer shall not “fail to correct a false statement of material fact…previously made to the tribunal by the lawyer.” RPC 3.3(a)(1).

    As an added bonus, it’s the right thing to do.

  36. In lawyer jargon a lie is a mistake, as long as a lawyer is doing it. For you and me, it’s just a lie.

  37. HINT:

    The one doing the cheating is Roger Goodell with some owners against the Pats.

    The Pats have never done anything sinister or wrong in Spygate or Deflategate.

    Belichick mocked Mangini off of a feud they were having, and everyone knows the Jets initiating shenanigans against NE going back to January of 1997, sabotaging/cheating against NE in the Super Bowl trying to hire away Parcells without NE knowing.


    This cheating by the Jets, and now others, is becoming very obvious at this point.

    Goodell is the facilitator of it and jumps at the chance to use rumors, heresay and lies to springboard that into a way to punish for parity.

    He’s been caught. STONE COLD

    Arrest, try and convict Sherrif Goebbels for collusion, fraud, sabotage and defamation of Tom Brady and Bill Belichick.

    Ask Goodell on a federal stand why he had Jeff Pash destroy those tapes.


    It showed other teams filming NE’s sideline from the sideline vantage point. Translation? It was only made illegal in 2006.

    Belichick was MOCKING Mangini and the Jets for picking on the Pats, and having Goodell alter the wording the rule, without a full 32 NFL team vote.

    That might be worthy of a fine, but it’s not cheating, folks.

    And Deflategate? Even worse. And, to think Goodell cited Spygate as a reason to stiffen the penalty??!!

    This is an outrage.

  38. If I were the lawyer for the NFL and he found out he was lie to.
    I’d step up right away and fix this mistake.
    It the end, its the lawyer who lied to the court and the next time he’s in front of any court he will feel the brunt.
    This is so typical of the NFL, they don’t care who they use.
    I cant wait until this present NFL management team comes crashing down. And it will soon enough!

  39. trailerparkking says:
    Mar 9, 2016 10:01 AM

    Pats fans are outraged by dishonesty?
    What did you make of the claim that the Deflator was trying to lose weight?

    What do I make of that claim? That claim is so dumb it may actually be true. If you or I were going to lie about what “the deflator” meant, we would certainly come up with something a lot cleverer than that.

    But, the question is not whether “the deflator” referred to weight loss, but whether it referred to removing air from footballs after they were submitted to game officials. “The deflator” appears in a single text message JM sent to JJ during the off season. It does not reference footballs in any way, shape , or form. One can speculate that it could be about letting air out of footballs, but speculation is not evidence. More to the point, there are other text messages which make no sense at all if “the deflator” is in fact referring to JM letting air out of footballs.

    When the Pats’ footballs were discovered to be inflated to roughly 16 psi after the Jets game, JJ’s text blamed the refs (“The refs f@*%#d us.”) If JM’s deflator text to JJ was about footballs, why would JJ blame the refs? If JM was adjusting the psi after the balls were delivered to the game officials, it would have been JM who was at fault. JJ would have blamed JM for the overinflated footballs, not the refs.

    Also, after the Jets game JJ sent this text: “I just measured some of the balls. They supposed to
    be 13 lbs… They were like 16. Felt like bricks” Why would JJ say the footballs should have been at 13 psi if he knew “the deflator” was supposed to set them to something less? The answer is obvious … he wouldn’t have said that.

    I’d ask those who fixate on “the deflator” text what they make of these other texts, but they don’t seem interested in any text that discredits their preferred conclusion.

  40. @LetMeFeelYourLove


    I feel like I am watching an old school Murder She Wrote episode, where if you just pay attenion in the first 20 minutes, you can usually deduce who the murderer is.

    It’s a tad harder than the gas station attendant at the beginning of a Scooby Doo episode, but you get the idea.

    Jastremski would have blasted McNally for not feverishly deflating 13 balls in 90 seconds before the Jets game on 10.16.14, not blame the refs for what is obvious negligence by the NFL refs, not really doing their jobs.

    And the fact is, the evidence Wells provides PROVES

    Also, that video by the MIT professor on You Tube shows how much time it would take to check 13 balls, inflate, deflate, etc, and there are 3 guys doing it together, all well past 90 seconds of time.

    There are so many obvious “tells” in the report, that this was in fact a complete concocted “event”, it’s not even funny.

    I don’t have enough time in the day to point them all out.

    The Pats Counter Report is so damning for the NFL, it’s shocking any non Pats fan stands with Goodell at this point.

    Jastremski and McNally mocking Brady’s perfectionism of how a ball should feel for Brady, per Brady’s desires as HOF QB, has no become a witch hunt that has clearly blown up in Goodell’s face.

  41. Another dead giveaway in the Wells Report:

    Why isn’t there a section on McNally’s actions before games during other home games?

    In other words, the Ravens/Pats pre game footage would have been available, on “site” so to speak, almost immediately because stadiums’ security footage doesn’t get dumped until 10 days later.

    So, the day after the witch hunt started, Goodell or anyone could have requested to see that pregame footage, if they had it in their little, small corrupt brains that a part time locker room attendant was a key cog in this supposed “scheme” before games.

    From what I can gather, ALL stadium security footage in pro sports goes to an off site data storage facility due to liability issues when things happen and lawsuits occur later on. This why, stadium owners can have proof they’re not liable for an incident.

    So, this means that would have been available to Wells at any time, but there is no mention of McNally’s other actions before games OTHER than the Indy game where he simply took a leak.

    So, to show a pattern of behavior, that would be an easy way to suggest this was a scheme, yet I can’t find anything like this in the contradictory and intentionally convoulted Wells With Hunt “Report”.

    I want Wells on a federal stand answering just WHY that was never furnished for the report.

  42. This whole thing has become so convoluted it’s not even funny anymore.

    I’ve been re-reading Wells, (just the breakdown), NFL vs NFLPA, (same), and all of the latest info to come out lately and I’m taking a step back to try and digest this “stuff!”

    If all of this is true then the NFL/31 OWNERS have proven all by themselves to be complicit in a scheme to railroad Brady and the Patriots!

  43. gaffya says:
    Mar 9, 2016 12:46 AM

    grasping at straws here,anything to try and distract people over what’s actually happening in the courtroom which is *Brady’s lawyers are getting demolished from the overwhelming evidence against him and the judges are getting weary of the same old tired excuses and are getting ready to uphold the suspension as well as prosecute him for obstruction….it’s exactly what that s.o.b. cheater deserves too….let him serve his suspension from prison…..


    Nice of you to stop short of sending him to the electric chair….

  44. sigh I miss the haters. THey are silent. Are they finally seeing the light? Or are the cowaring in a corner finally becoming aware that their hate was NEVER backed up by facts?

  45. Evidence against TB? what about the evidence against the NFL? YOU step away from the hallucinogen step away from the hallucinogen you’ve had enough

  46. Berman shredded the NFL and the Wells report in court and on the record. Do the high priced buffoons meaning Goodell and his lawyers think no one noticed?

  47. gaffya says:
    Mar 9, 2016 12:46 AM
    grasping at straws here,anything to try and distract people over what’s actually happening in the courtroom which is *Brady’s lawyers are getting demolished from the overwhelming evidence against him and the judges are getting weary of the same old tired excuses and are getting ready to uphold the suspension as well as prosecute him for obstruction….it’s exactly what that s.o.b. cheater deserves too….let him serve his suspension from prison…..


    Prison? Wow, don’t you just sound like a completely reasonable and unbiased person.

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