When NFL appellate counsel Paul Clement made misstatements of fact to the U.S. Court of Appeals for the Second Circuit in connection with the Tom Brady case, NFLPA lawyer Jeffrey Kessler didn’t correct him. After the hearing ended, another lawyer with an interest in the case did.
New York Law School professor of law Robert Blecker, who previously submitted a “friend of the court” brief attacking the league’s handling of the Brady case, submitted a letter to the appeals court on March 17 detailing the misstatements of fact made by Clement on behalf of the NFL.
First, Blecker points out in his letter that the NFL’s written brief, as submitted by Clement, claims that Jim McNally referred to himself as “the deflator” in text messages sent to John Jastremski in May 2015 “and continuing during the 2014-2015 season.” The truth, as explained by Blecker, is that McNally referred to himself as “the deflator” only once, in May 2014.
Second, Blecker tells the appeals court that the NFL, through Clement, said that “Brady’s counsel was present for many of the interviews” in connection with Brady’s argument that hius lawyers should have had access to the notes of the interviews conducted by Ted Wells and his firm. As Blecker writes, Brady’s lawyers were present for only one interview — Brady’s.
Third, Blecker explains that the NFL’s characterization, through Clement, of the issue of football tampering in connection with the AFC championship game is misleading because it’s incomplete in multiple ways, adhering to the notion that the Patriots necessarily cheated because their footballs measured below 12.5 PSI and pushing once again the misrepresentation that none of the Colts’ footballs were below 12.5, when in fact three of the four balls measured below 12.5 PSI on one of the two gauges used.
Fourth, Blecker raises the misstatement that happened during the oral argument on March 3, when Clement said Commissioner Roger Goodell deemed Brady’s testimony at the internal appeal hearing not credible because he said that he talked to Jastremski only about Super Bowl ball preparation in the days after the deflation scandal emerged. However, the transcript of the hearing before Goodell makes clear that Brady admitted that he talked to Jastremski about both Super Bowl football preparation and the deflation controversy.
Blecker next cites the legal duty of candor to the court and argues that Clement has the obligation to correct the misstatements.
Attached to the letter from Blecker to the appeals court is a copy of a letter that Patriots counsel Daniel L. Goldberg sent to Clement in late January, informing him of various misstatements contained in the brief submitted by Clement on the NFL’s behalf. Clement did not attempt to correct any of the misstatements mentioned in Goldberg’s letter until after the submission of Blecker’s letter on March 17.
It’s unclear whether and to what extent this issue will cloud the appeals court’s assessment of the case. However, on a day when the NFL has gone to great pains to correct alleged misstatements made by the New York Times regarding the ongoing concussion problem, the failure to rectify fairly clear and obvious errors represents a bad look for a league office that claims to be committed to integrity and accuracy.
UPDATE 11:42 p.m. ET: Earlier this week, Clement responded to Blecker’s letter, calling the attack on alleged misstatements “procedurally improper and wholly unfounded.”