Last week, amid widespread media criticism of attorney Paul Clement’s apparent misstatements to the U.S. Court of Appeals for the Second Circuit in connection with the Tom Brady appeal, New York Law School professor Robert Blecker sent a letter to the appeals court pointing out various alleged factual errors from the brief signed and oral argument presented by Clement on behalf of the NFL.
Earlier this week, Clement responded to Blecker’s letter. The NFL has forwarded to PFT a copy of Clement’s three-page response dated March 21.
In attempting to dismiss Blecker’s letter as “procedurally improper and wholly unfounded,” Clement initially explains that counsel for the NFL Players Association “had more than adequate opportunity to respond in the ordinary course,” both in the NFLPA’s written materials and at oral argument. Clement also chastises Blecker for not raising his concerns regarding alleged misstatements from Clement’s opening brief in Blecker’s “friend of the court” brief but instead through a post-argument letter submitted directly to the court. As a practical matter, it’s a lawyer’s way of complaining not about the substance of the argument but the way the argument was presented.
Clement then addresses the alleged misstatements, one at a time. As to the contention that Clement incorrectly suggested that Jim McNally referred to himself as “the deflator” in multiple text messages instead of only in one, Clement tries to turn the tables by suggesting that Blecker misinterpreted Clement’s full statement: “In messages dating back to May 2014 and continuing during the 2014-2015 season, McNally referred to himself as ‘the deflator’ and the two discussed deflation using ‘needles.'”
While it’s indeed incomplete to suggest based on the full quote that Clement suggested that McNally referred to himself as “the deflator” in May 2014 and throughout the 2014-2015 season, there’s an artful sort of deception lurking in the way the sentence was constructed, allowing Clement to claim, when push comes to shove, that he was technically being truthful despite the fact that, in reality, he was blurring the lines — and surely not accidentally.
As to the assertion that Clement told the appeals court that Brady’s counsel was present for many of the interviews conducted as part of the #Deflategate investigation when in reality Brady’s lawyers were present only for his own interview, Clement calls the statement immaterial to the argument in support of the position that Brady’s lawyers had no right to receive notes of interviews they did not attend. Regardless of how central the misstatement is to the argument, however, it’s still a misstatement — one that Clement’s letter does not correct or apologize for.
Regarding Blecker’s contention that Clement presented information regarding PSI measurements from halftime of the AFC title game between the Patriots and Colts in a misleading way, Clement claims that the statements regarding the PSI measurements are technically accurate, and that Blecker “simply disagrees with the damaging inference that the Commissioner drew from those undisputed facts.” Regardless, the PSI information is indeed presented in a misleading way.
Finally, as to Blecker’s position that Clement repeated the misstatement from Commissioner Roger Goodell’s internal appeal ruling regarding Brady’s explanation for the uptick in communications with John Jastremski after the deflation controversy emerged, Clement presents a convoluted word salad aimed at justifying the conclusion that Brady lied because he tried to justify the increased communications with Jastremski by pointing to the task of preparing footballs for the Super Bowl, not to the sudden urgency to talk arising from the investigation into potential cheating. In this regard, our item from August 4 says all that needs to be said on the matter.
Despite Clement’s protest regarding the format used by Blecker to raise the issue or the suggestion that Blecker obtained the January 26, 2016 letter placing Clement on notice of potential misstatements in his brief directly from the Patriots’ outside counsel, Blecker’s letter accomplished its goal — the appeals court is now aware of the issue. Given that the hearing from March 3 apparently didn’t go so well for Brady’s side of the argument, the tactic can’t hurt. Especially if the appeals court believes that Clement did indeed misstate the facts, and if the appeals court concludes that his letter doesn’t go nearly far enough when it comes to clarifying the record.