#DFG: Canceling the Noise

Is there any level of suspension that you would advise Tom to accept?


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drbretto

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Mooch

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@GregABedard NFLPA "asked" Yee to keep silent on all details, knowing this was going to Fed court. You never tip your hand.

Ugh. Yee is a loose cannon.
 

rodderick

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After all this, if it comes up that Brady indeed had knowledge of something going on, my opinion of him will take a nosedive. I mean, he'd have to be borderline sociopathic to fight this so staunchly while being guilty. 
 

joe dokes

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I didn't find Yee's statement particularly persuasive with regard to transparency. It's fine concerning precedent, because, well, it's correct there.

But it doesn't matter that you've turned over more information than anyone else ever has if the information that you withheld is the important stuff. He's spinning here, and in a way that's so unconvincing that it's worrisome
 
Precedent and the Wells privilege stuff is important, IMO, because it goes to the ability to defend.
 
The lawyers here don't agree on much, but it seems most agree that the phone stuff is bad -- not just optically -- but substantively.
.           
 

Ed Hillel

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Mooch said:
@GregABedard NFLPA "asked" Yee to keep silent on all details, knowing this was going to Fed court. You never tip your hand.

Ugh. Yee is a loose cannon.
Yee didn't say anything without Brady's approval.
 

nattysez

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DrewDawg said:
 
It appears Tomase didn't like it:
 
John Tomase ‏@jtomase 4m4 minutes ago
If I'm Tom Brady, I'm telling Don Yee to practice writing statements to himself and then sticking them in his Trapper Keeper for eternity.
 
 
 
A very brief diversion -- I love reading the replies and/or comments when Tomase says word one about the Pats.  God bless New Englanders' long memories.   
 
 
rodderick said:
After all this, if it comes up that Brady indeed had knowledge of something going on, my opinion of him will take a nosedive. I mean, he'd have to be borderline sociopathic to fight this so staunchly while being guilty. 
 
I agree 100%.  Especially because he's watching Patriots fans bend over backwards to support him.  
 

wibi

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drbretto said:
I do still take issue with your stance that it's not normal for people to destroy the data on their phones before replacing them though. Many people do and everyone should. 
 
You are moving the goal posts.  First time was talking about destroying the phone, later it was destroying the SIM and now its talking about destroying the data on the phone.  Those are three very different things when it comes to information security.  Almost everyone I know destroy's the data on their phone (or at least attempts to) but very few people I know destroy their phone or their SIM cards. 
 

Myt1

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Ed Hillel said:
Yee didn't say anything without Brady's approval.
He's not doing his client a service there and it smells a bit like covering his own ass for letting the destruction happen in the first place.
 

LuckyBen

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rodderick said:
After all this, if it comes up that Brady indeed had knowledge of something going on, my opinion of him will take a nosedive. I mean, he'd have to be borderline sociopathic to fight this so staunchly while being guilty.
How exactly will you find that information out if the NFL wasn't able to? Or do you mean in the generally aware sense.
 

dcmissle

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I am comforted by the fact that if Yee is doing this, Kessler and the guy at Gibson Dunn is doing the legal work.

I have been tied up on some calls. Has someone explained how the SDNY has personal jurisdiction over TB (not subject matter) with regard to a matter that arose in MA?

Could the petition to confirm been filed in Baltimore or Indianapolis? I am genuinely curious.
 

Mooch

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Ian Rapoport ‏@RapSheet · 2m2 minutes ago
Interesting. @judybattista says the sides were moving close to a 1-game suspension settlement. But Brady wanted records sealed. NFL wouldn’t
 
 

cornwalls@6

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rodderick said:
After all this, if it comes up that Brady indeed had knowledge of something going on, my opinion of him will take a nosedive. I mean, he'd have to be borderline sociopathic to fight this so staunchly while being guilty.
Meh, keep the nature of the crime in mind even if he is guilty. This has become bizarro world over a very minor offense, that the league practically begged everyone to commit with the ridiculouse ball-handling policy in the first place.
 

Myt1

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wibi said:
 
You are moving the goal posts.  First time was talking about destroying the phone, later it was destroying the SIM and now its talking about destroying the data on the phone.  Those are three very different things when it comes to information security.  Almost everyone I know destroy's the data on their phone (or at least attempts to) but very few people I know destroy their phone or their SIM cards. 
And, in all likelihood, literally no one either of you has met has destroyed any of the above on or about the same exact day that it was requested in a proceeding at least somewhat likely to lead to federal litigation.
 

WayBackVazquez

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dcmissle said:
I am comforted by the fact that if Yee is doing this, Kessler and the guy at Gibson Dunn is doing the legal work.

I have been tied up on some calls. Has someone explained how the SDNY has personal jurisdiction over TB (not subject matter) with regard to a matter that arose in MA?

Could the petition to confirm been filed in Baltimore or Indianapolis? I am genuinely curious.
 
TB is not a party, and from the limited googling I've done, would not have standing to confirm/vacate. This is an NFL/NFLPA issue.
 

Devizier

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Honestly, I just don't care anymore.
 
Just file the case. Win, or if not, appeal indefinitely until Brady retires in three years.
 

rodderick

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cornwalls@6 said:
Meh, keep the nature of the crime in mind even if he is guilty. This has become bizarro world over a very minor offense, that the league practically begged everyone to commit with the ridiculouse ball-handling policy in the first place.
 
Sure, keeping the nature of the crime in mind, it wouldn't have mattered to me one bit if he had done it and owned up to it immediately. I don't have a problem with that, just a guy who likes balls a little under inflated going the extra mile to get them that way.
 
It's a whole other story to keep denying it and putting on a huge fight if you're aware it happened in the first place. That'd be really disappointing.
 

Jed Zeppelin

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Yee was great in the beginning when we foolishly imagined there was still a chance this farce could be definitively turned around on the NFL. My opinion of him at this point is that he should stfu and let the big boys do the talking. His early bluster led to absolutely nothing way back when and it won't add anything positive now...it's a PR move long long LONG after the PR battle has been lost.
 
edit: This comes off a bit harsh but really I just don't really care about what anybody has to say about this anymore. I have no excitement or expectation left that "more is coming" that can shed any kind of light on the situation. Maybe I'll read the book when it comes out.
 

Bleedred

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RG Decision, page 12, 3rd full paragraph:   "Mr. Brady explained that when he changes cellphones, he gives his old cellphone to an assistant with the instruction "to destroy the phone so that no one can ever, you know, reset it or do something where the information is available to anyone.""  "But this conflicts with the fact that the cellphone that he had used prior to November 6, 2014 was, in fact, available for....review.  Had Mr. Brady followed what he and his attorneys called his 'ordinary practice," one would expect that the cellphone that he had used prior to November 6, 2014 would have been destroyed long before Mr. Maryman [forensic expert hired by TB to review his phone for the appeal] was hired.  No explanation was provided for this anomaly."
 
There are innocuous reasons why the November 2014 phone still existed but Brady chose to "destroy" the other phone in March of 2015, but this is another uncomfortable fact.
 

LuckyBen

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Mooch said:
Ian Rapoport ‏@RapSheet · 2m2 minutes ago
Interesting. @judybattista says the sides were moving close to a 1-game suspension settlement. But Brady wanted records sealed. NFL wouldn’t
Doesn't pass the smell test. So Brady gave up a 1 game suspension and the knowledge that the NFL would leak anyways to possibly serve 4 games? More likely the NFL said you must say you are guilty and he said no.
 

drbretto

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wibi said:
 
You are moving the goal posts.  First time was talking about destroying the phone, later it was destroying the SIM and now its talking about destroying the data on the phone.  Those are three very different things when it comes to information security.  Almost everyone I know destroy's the data on their phone (or at least attempts to) but very few people I know destroy their phone or their SIM cards. 
 
These are very different things if you're someone who works on cellphones for a living. To regular people, they aren't making a distinction. Everyone who is saying that the phones should be destroyed before upgrading means the data or the physical medium it's written on. No one is moving any goalposts. They're just not technical.
 

MarcSullivaFan

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Myt1 said:
He's not doing his client a service there and it smells a bit like covering his own ass for letting the destruction happen in the first place.
Agreed. He either destroyed his phone because it had incriminating evidence--in which case I'm not particularly sympathetic--or because it had a bunch of other embarrassing stuff, in which case it was a tremendously stupid unforced error.

In the real world employers--even in the unionized context--draw negative inferences from the destruction of or unwillingness to provide data potentially relevant to an investigation. You may have a right to withhold the information but that doesn't necessarily insulate you from the consequences of not handing it over. This part of this situation has always bothered me, and now it really bothers me.
 

rodderick

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MarcSullivaFan said:
Agreed. He either destroyed his phone because it had incriminating evidence--in which case I'm not particularly sympathetic--or because it had a bunch of other em raising stuff, in which case it was a tremendously stupid unforced error.

In the real world employers--even in the unionized context--draw negative inferences from the destruction of or unwillingness to provide data potentially relevant to an investigation. You may have a right to withhold the information but that doesn't necessarily insulate you from the consequences of not handing it over. This part of this situation has always bothered me, and now it really bothers me.
 
This is exactly where I stand too. 
 

simplyeric

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Bleedred said:
Footnote 2, page 7 of the decision:  "For similar reasons, I reject the arguments advanced in the AEI Report.   The testimony provided by the Exponent witnesses and Professor Marlow demonstrated that none of the arguments presented in that report diminish or undermine the reliability of Exponents conclusions"
 
This is amazing.
 
"The testimony provided demonstrates that the testimony is reliable"
 

drbretto

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Well, if this November phone exists and the new phone was destroyed pretty much on the day of the interview, then I will agree with the suspicious chorus. But, I do want to wait for all of the info to come out before judging it.
 

CaptainLaddie

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The NFL is so used to the NFLPA and their union members bending the knee that they took this as an opportunity to turn one of the best players of all time into a martyr in order to try and break the NFLPA in half.  Whether or not Brady knew or didn’t know about something happening isn’t even relevant to this whole affair.  The NFL decided they would try and get one of the main union members, one who’s been the plaintiff in a case against the NFL in the past, mind you, to go against his union and to weaken them for future situations.  Everything Brady has done since this thing has started has been the correct and proper thing to do in terms of how you should handle yourself as a union member, never mind arguably one of the three most important union members in the NFLPA.
 
That the NFL and Goodell straight up refuse to acknowledge that the Ideal Gas Law exists -- something that is taught in basic science classes in 7th grade -- sort of says it all.  It’s not about anything more than trying to gain leverage over the NFLPA by getting one of the most important members to give concessions.
 
The NFL is, at best, an unreliable narrator when it comes to this stuff.  At worst?  They're liars who twist the facts to tell their own fallacies.  It's comical.
 

drbretto

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pappymojo said:
This is a bullshit post.
 
It's an emotionally reactive post. And I'm not sure why it surprises people every time it happens. It's been like this since day one. If you want a credible, rational analysis come back tomorrow. Or even in a couple of hours. In the meantime, take everyone with a grain of salt until things settle down.
 

EricFeczko

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Bleedred said:
I'm just reading through the Decision and found what is a minor, but foolish, error in Goodell's logic findings.  In the last paragraph on Page 8 (carries over to page 9), Goodell is discounting Brady's testimony about what he discussed after the AFCCG with Jastremski about the footballs.   In that paragraph, he writes "Mr. Brady testified that he was unable to recall any specifics of those discussions and he suggested that their principal subject was preparation of game balls for the Super Bowl."
 
Then, in the first full paragraph on Page 9, Goodell writes:  "The sharp contrast between the almost complete absence of communications through the AFCCG and the extraordinary volume of communications during the three days following the AFCCG undermines any suggestion that the communications addressed only preparation of footballs for the Super Bowl rather than the tampering allegations and their anticipated responses to inquiries about tampering."
 
Brady testified that "the principal subject" was preparation of game balls, not the only subject.  Yet RG's decision can't even follow the facts of a preceding paragraph.
Here's two others:
 
-Stating that Brady prefers 12.5 PSI as "the perfect grip for me" and instructed assistances to inflate balls to 12.5 PSI is evidence for Brady preferring balls under 12.5 PSI.
-footnote 1, where Goodell argues that there's ample evidence that the non-logo gauge was used, "because otherwise, neither the Colts balls' nor the Patriots' balls, when tested by Mr. Anderson prior to the game, would have measured consistently with the pressure each team had set their footballs prior to delivery to the game officials, 13 and 12.5 PSI respectively."
 
To me, this report basically read that RG upheld the suspension because the NFLPA and Brady are full of shit. Furthermore, it sounds like his justification reflected more the Brady/NFLPA conduct than the act itself; in footnote 17 he notes that he mitigated the Browns' manager's suspension because of his, "self-reporting and transparency in acknowledging wrongdoing". Perhaps, had Brady presented the cellphone or made a statement of wrongdoing (regardless of whether he actually committed the act or not), RG would've nixed the suspension. Of course, Brady didn't have the cellphone and is adamant that he has done nothing wrong. Ironically, Brady's camp testified that the cellphone was destroyed and the texts unrecoverable, and RG used that evidence to partially justify upholding the suspension.

It is also noteworthy that, apart from brady's cellphone, RG would've been unconvinced by almost anything. Had Mcnally testified, RG would've rejected the testimony as uncredible. RG would've rejected other scientists expertise because the exponent experts/professor Morrow were credible.
 
EDIT: Above is my interpretation of the report, not my personal opinion on the facts (or lack theroef) or (absurd) penalties.
 

Marciano490

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Maybe Goodell isn't such a dope after all.  He undercuts the competitive ability of the one team consistently able to circumvent the league's attempt at parity and makes a play for expanded power at the union's expense all based out of football inflation levels without any real threat of recrimination or downside (wishcasting here aside). 
 

natpastime162

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Bleedred said:
Specifically:   "Mr. Brady's certified agents offered to provide a spreadsheet that would identify all of the individuals with whom Brady exchanged text messages during that period;...and suggested that the League could contact those individuals and request production of any relevant text messages that they retained"   RG said it was "simply not practical."
 
A $5,000,000 4 month report from one of the top legal firms in the world on the otherhand...
 

dcmissle

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The phone business is a gut punch.  You have to pretend it does not hurt, but it does.  And if what we learned this afternoon was false in fact, Yee would have denied it in his statement.  He didn't.
 
I had hoped and expected the junk science would frame the case.  Not decide it legally, but color the entire way the judge looks at it.  Now the phone stuff.
 
There is no reason in the world to destroy that phone.  None.  Even if the stuff on it is awful, you put it in the fireproof safe.  If by some bizarre circumstance a judge orders you to produce it, you decline and lose your federal court case in the name of principle if it comes to that.  Judge is not putting TB in jail for civil contempt.
 
But you do NOT destroy it.
 
Yee should have known that a legally unsophisticated celebrity might be tempted to destroy it -- which is why he should have grabbed it and put it in the safe.
 
And I can't for the life of me understand why Kessler let this story come out in the hearing.
 
It really sucks when you know you could have done a better job for someone you care about than other highly paid people who should have known better.
 
They have to find something else for Yee to do -- and quickly.
 

uncannymanny

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Myt1 said:
I didn't find Yee's statement particularly persuasive with regard to transparency. It's fine concerning precedent, because, well, it's correct there.

But it doesn't matter that you've turned over more information than anyone else ever has if the information that you withheld is the important stuff. He's spinning here, and in a way that's so unconvincing that it's worrisome.
Yup, Yee seems like the kind of blustery guy that gets his client in trouble. Sounds to me like he was he one who suggested destroying the phone (he sent the letter informing he NFL of its destruction).

DrewDawg said:
 
It appears Tomase didn't like it:
 
John Tomase ‏@jtomase 4m4 minutes ago
If I'm Tom Brady, I'm telling Don Yee to practice writing statements to himself and then sticking them in his Trapper Keeper for eternity.
 
I agree.

Apologies if this was posted, but I'd love to hear the lawyers chime in on this:

http://www.atlredline.com/no-destroying-tom-bradys-cell-phone-was-not-okay-1720689663
 

ElcaballitoMVP

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This ruling is so frustrating when you read it. 

-Don't produce McNally and Jastremski? Rog takes that as you hiding something. But as Rog notes throughout his decision, even if they showed up he already viewed them as not having any credibility. So what good is bringing them in going to do if you aren't going to listen to them objectively?
 
-Still has no idea how the ideal gas law works.
 
-Justifying the Exponent work. TB argues that the time the balls were measure at halftime effected the readings. Exponent said that couldn't be the only explanation, so Rog throws out the idea that it could have an effect. Well yeah, no shit it wasn't the only explanation. We've got the non-logo vs logo gauge issue, outside temperature vs inside temperature, whether the balls were wet or dry, and on and on. It reads to me as if Exponent looked at each factor individually and said that none could explain natural deflation in the footballs, but aren't considering that all of the factors together could. Am I wrong here? It says "but that timing in and of itself could not account for the full extent of the pressure declines that the Patriot's game balls experienced." 
 
-The destroying of the cell phone thing looks bad, I'll admit, but it's really frustrating that the commish continues to look at non-evidence as evidence. They're really propping their case up on this fact. I'm interested to see how this situation evolves once they get to court. 
 
-Rog cites this preponderance of evidence that Brady was involved in deflating footballs, but cites things like Brady wanting the officials to know the rule says he can have them at 12.5 psi, or that McNally admitted he told the officials how Tom likes his footballs, or that Tom has said he likes his footballs to be at 12.5. None of that shows he was involved in or knew of deflation of footballs after they've been inspected. 
 
There's so much more in the ruling that drives me crazy, but equating this to PED use is just ridiculous. I am just holding out hope that Brady wins in court because this whole mess has really brought down my level of interest in the league. If he actually misses games because of this, it's going to be tough to swallow. 
 

Van Everyman

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dcmissle said:
The phone business is a gut punch.  You have to pretend it does not hurt, but it does.  And if what we learned this afternoon was false in fact, Yee would have denied it in his statement.  He didn't.
 
I had hoped and expected the junk science would frame the case.  Not decide it legally, but color the entire way the judge looks at it.  Now the phone stuff.
 
There is no reason in the world to destroy that phone.  None.  Even if the stuff on it is awful, you put it in the fireproof safe.  If by some bizarre circumstance a judge orders you to produce it, you decline and lose your federal court case in the name of principle if it comes to that.  Judge is not putting TB in jail for civil contempt.
 
But you do NOT destroy it.
 
Yee should have known that a legally unsophisticated celebrity might be tempted to destroy it -- which is why he should have grabbed it and put it in the safe.
 
And I can't for the life of me understand why Kessler let this story come out in the hearing.
 
It really sucks when you know you could have done a better job for someone you care about than other highly paid people who should have known better.
 
They have to find something else for Yee to do -- and quickly.
This all makes sense. But we have only heard one side so far and as much as we can "pretend this isn't a gut punch" we also tend to overreact in the face of the presentation of one-sided arguments or incomplete evidence (see: Mort tweet). The NFLPA has just said that they they had all the relevant texts. Yee has said more information about Brady's electronic communications is forthcoming. And, as you note, a bunch of this doesn't really add up from a legal perspective on Brady's side as of present.

It may well be as you say it is, dcm – I want Brady not simply to be vindicated but also more simply, to be innocent. But given how many turns this has take thus far, I'd be shocked if this was really checkmate.
 

EricFeczko

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dcmissle said:
 
And I can't for the life of me understand why Kessler let this story come out in the hearing.
EDIT: Assuming that Brady is telling the truth here, I suspect that Brady had actually informed the Wells team during the independent investigation, given that the initial request was for his information, and not his cellphone. In the NFL statement, it was noted that Brady's counsel asked for Wells' internal records, and i suspect such records would have been used to try to validate this claim along with others. The fact that he deleted it remains suspicious, obviously, though not incriminating. On the other hand, if Brady mentioned this during his interview with Wells' team, I guess you could ask the question the other way around (I'm not sure why Wells would avoid mentioning it in his report).
 
According to the NFL statment, and I think noted by bleedred above, Brady's side produced this evidence prior to the hearing (last paragraph of page 3) :
 
 
As noted above, on June 18, 2015, shortly before the hearing and nearly four months after the investigators had first requested information from his cellphones, Mr. Brady's counsel submitted correspondence and other materials indicating that the cellphone that Mr. Brady had used from November 6, 2014, through march 5 or 6, 2015, was unavilable because it had been destroyed, and that the text messages exchanged on that cellphone could not be retrieved.
 

lambeau

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It has been mentioned that Kessler got involved late--that Yee (and maybe his partner) was the counsel in March at the Wells interview. Very, very naive for Tom to go with a nonpracticing lawyer.
Almost unbelievable, in fact, for somebody of his stature not to have been advised to get the best--not just his U of M buddy. Where was his father or Giselle?