#DFG: Canceling the Noise

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


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DJnVa

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I say this as a Patriots fan but I simply cannot be sure that Brady is innocent, even if the NFL has handled this thing horribly all the way along. 
 
 
 
I have the Ideal Gas Law on the "Innocent" side. You have a destroyed cell phone on the other.
 
 
Your whole POV changed because of a destroyed cell phone. Not because of anything else. A destroyed cell phone. You have bought the NFL's story that because they cannot find evidence, Brady must have destroyed it.
 

Myt1

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86spike said:
So any of the resident lawyers have a take on how easy (or hard) it will be for Brady to get a judge to issue an injunction of the suspension until his case is heard?

I've read a few takes today saying that's not a slam dunk.
He's got a good chance of getting one.
 

Myt1

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DeJesus Built My Hotrod said:
 
Here is the thing though - if you buy the sting aspect to this, it suggests that the NFL knew it would find something.  We may never really know if the deflated balls in the AFCG were deliberate or via ideal gas law but the NFL checked, found what they thought was a violation and the rest is history.  
 
Given that the NFL has been so hardline on this suggests one of two things - either that the league HQ is truly staffed with people who irrationally hate the Patriots or they thought they caught Brady for something they knew he had been doing in the past and instead of admitting it, he dug in and was uncooperative, "destroying evidence" in the process.  
 
To be clear, I do not think Brady should have handed his phone over to investigators (for all the reasons already mentioned in this thread) but destroying it looks bad for him.  If you buy the latter scenario, it also makes it easier to see why the NFL appears to be ok with dragging one of its more high-profile names through the mud.  Because otherwise this looks like a pure witch-hunt without much of a rational motive. 
 
I say this as a Patriots fan but I simply cannot be sure that Brady is innocent, even if the NFL has handled this thing horribly all the way along. 
The NFL's behavior could suggest a whole universe of things that aren't accounted for in your false dilemma.
 

djhb20

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It should be pretty easy to get an injunction. There's no real harm to the league if it is ultimately upheld and Brady serves the suspension later. On the other hand, there is real irreparable harm to Brady (I guess, the PA) if he starts serving the suspension and it is later found to be invalid. There's no way to undo that.

That's not the only issue to consider in the injunction, but it swings so hard in favor of an preliminary injunctions that I can't imagine that being denied.
 

RhaegarTharen

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My biggest concern is that it appears that the NFLPA/the Pats/Brady and his team have underestimated the NFL at every turn. 
 
- They first underestimated the level of importance the League would assign to such a meaningless controversy.  
- They next underestimated the level to which the League would stoop to "win" the PR battle and ensure that the Shield controlled the narrative in the press. 
- Then then underestimated the League's willingness to ignore science and common sense (for the first time) when "investigating" the whole ordeal.
- They underestimated the harshness of penalties to be imposed by the League even in the scenario where the "fix was in" and a finding against them was a foregone conclusion. 
- They underestimated the League's willingness to ignore science and common sense (for the second time) during the review of Brady's appeal. 
- Finally, they underestimated the League's ability to establish a preemptive strike on the inevitable court appeal and likely assumed a foregone conclusion that they would be able to control the court battle.  
 
This is not a confidence-inspiring precedent.  
 

dcmissle

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Agree on PI chances.

Do we want one? Wetzel has done a 180 and thinks Brady is fucked. Phone. How did he not know better?
 

Drocca

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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.
 
There's not really much you can do with the cooperation piece because the NFL won that PR battle fairly convincingly today. So he saved it for last and did what he could --- relied on the "more information than" fake transparent take. I mean, it's stupid that Brady destroyed the phone. 
 
But the other stuff, the beginning was framed perfectly and eloquently. To me it boiled down to: 
 
We did not do what we have been accused of doing.
The process by which we have been able to state our case has been rigged.
The NFL is ignoring the science confirming my client's innocence.
 
They need to stay on top of the actual issue and get away from the cell phone b.s. and he did a great job at it. The NFL will want to keep pushing on the cell phone business, but the issue isn't a cell phone, it's did Tom Brady request balls be deflated for a competitive advantage? They are saying, "No, and, in fact, science says that's not even what happened and you have made no mention of this fact."
 
Good strategy to make it the conversation you want to have, not the one they want to have.
 

Ed Hillel

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dcmissle said:
Agree on PI chances.

Do we want one? Wetzel has done a 180 and thinks Brady is fucked. Phone. How did he not know better?
Fucked up twice. Getting rid of it and then admitting he did that.
 

cornwalls@6

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sleepyjose03 said:
My biggest concern is that it appears that the NFLPA/the Pats/Brady and his team have underestimated the NFL at every turn. 
 
- They first underestimated the level of importance the League would assign to such a meaningless controversy.  
- They next underestimated the level to which the League would stoop to "win" the PR battle and ensure that the Shield controlled the narrative in the press. 
- Then then underestimated the League's willingness to ignore science and common sense (for the first time) when "investigating" the whole ordeal.
- They underestimated the harshness of penalties to be imposed by the League even in the scenario where the "fix was in" and a finding against them was a foregone conclusion. 
- They underestimated the League's willingness to ignore science and common sense (for the second time) during the review of Brady's appeal. 
- Finally, they underestimated the League's ability to establish a preemptive strike on the inevitable court appeal and likely assumed a foregone conclusion that they would be able to control the court battle.  
 
This is not a confidence-inspiring precedent.  
 
I'm honestly not sure what they could have done to pre-empt one of those points. 
 
 

Otis Foster

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dcmissle said:
Florio expands on the cock punch.  He is right.  I have bolded the points I thought had been reserved for junk science.
Well, it's a spoliation issue. Yee should have put a litigation hold on everything.

In plain English: Once you've been told someone is beginning a proceeding against you, you lose whatever right you previously had to simply trash information that may have any bearing on the matter in issue. TB no longer has the freedom to make that decision. Courts look on violations with an especially skeptical eye. The relevance of the information is no longer the question, its a question of preserving possible evidence so the court can decide if its relevant.

That's a big issue in litigation. Lawyers and clients have been severely sanctioned for playing the edge with it. Granted, this is procedurally a bit different, but Doty (or whoever sits) may apply that reasoning by analogy.

Caveat: I haven't been a litigator for many years, so I defer to those who are.
 

PedroKsBambino

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dcmissle said:
Agree on PI chances.

Do we want one? Wetzel has done a 180 and thinks Brady is fucked. Phone. How did he not know better?
On the phone, legally (not pr-wise) doesn't it come down to whether Brady should have kept the phone, perhaps because it was in anticipation of litigation?

If he was, then it's very bad to have destroyed it. But if he wasn't, given the lack of ability of NFL to force him to turn it over, it's legally irrelevant.
 

dcmissle

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Honestly, with this hand I would have been tempted to settle -- and if the NFL were, in fact, asking for an acknowledgement of guilt, that is not going to be regarded as nuts.  It may be very wrong, but it's not nuts.
 

dcmissle

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Otis is right.  Yee and Brady don't get to make the relevance determination at the time. 
 

Drocca

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Sportsbstn said:
It has to be time for Tom to talk, does it not? Anyway you slice it the phone makes him look bad. Its time for Tom to publically tell his side
 
Absofuckinglutely not. He was terrible the first time he did a press conference on this. Tom Brady is a lot of awesome things, but you do not put him out there right now, there are highly paid, very accomplished professionals that need to do their jobs.
 
Speaking of which, I praised the Yee statement, but GD, I wish I marketed whichever attorney wrote that player's union response --- very solid. 
 

Average Reds

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Only have a phone, so apologies in advance for typos.

Anyway, I have to say that the news about Brady's phone does not inspire confidence in his innocence. At the same time, the NFL has engaged in such egregious smears and has used such circular logic in the appeals decision that I'm thinking that I'll wait to hear the full story of Brady's phone before I pass judgment.

Putting all that aside, no matter the actual truth, the NFL won the PR war today. Absent an almost inconceivable series of events, Brady has been forever branded a cheater.
 

RhaegarTharen

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cornwalls@6 said:
 
I'm honestly not sure what they could have done to pre-empt one of those points. 
 
 
I'm not sure there's any specific thing they could have done to preempt one of the points, so much as if they thought the NFL would have reacted this way, I think there's a lot they would have done differently.  Hindsight is 20/20 and all that - but at some point you have to question the foresight.  
 

DeJesus Built My Hotrod

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DrewDawg said:
 
 
I have the Ideal Gas Law on the "Innocent" side. You have a destroyed cell phone on the other.
 
 
Your whole POV changed because of a destroyed cell phone. Not because of anything else. A destroyed cell phone. You have bought the NFL's story that because they cannot find evidence, Brady must have destroyed it.
My POV didn't change based on the destroyed cell-phone.  I have tried to keep an open mind about this case since day one.  Its never been implausible to me that Brady asked the ball boys to deflate the balls, especially since nobody really gave a shit until the AFCG and that his preference was widely known around the league.  
 
That said, the destroyed cell phone weighs against Brady here for me.   He should not have surrendered it by any means but when I add that to what we know about the rest of this "case", the NFL's axe here makes more sense.  To be fair to Myt1, there could be many other reasons the NFL has taken such a hard-line, however a scenario where they caught him and they got push-back instead of contrition makes their stance look somewhat rational.
 

bsj

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Getting rid of the phone fucks him in the public. Getting rid of the phone has zero effect on the defenses of notice and precedent. Anyone that says the phone hurts his court case is a moron. His defense is not "i cooperated".
 

dcmissle

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This is why you don't send a carpenter to do electrical work or an electrician to do plumbing. Goddamit Yee.

And honestly, if I'm the NFLPA, this is not the factual record on which I want to litigate whether the NFL has a right to personal player information or devices. They have to represent all comers -- but now I understand why they might have been indeed settlement talks with the League.
 

dcmissle

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bsj said:
Getting rid of the phone fucks him in the public. Getting rid of the phone has zero effect on the defenses of notice and precedent. Anyone that says the phone hurts his court case is a moron. His defense is not "i cooperated".
Do you try cases -- or just throw around perjorarive nouns? The latter, I bet.
 

MarcSullivaFan

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bsj said:
Getting rid of the phone fucks him in the public. Getting rid of the phone has zero effect on the defenses of notice and precedent. Anyone that says the phone hurts his court case is a moron. His defense is not "i cooperated".
It has some bearing on whether the penalty for non cooperation is appropriate. More importantly, it has the potential to prejudice the judge against Brady. Judges are human beings. Any lawyer representing Brady at this point would have major major heartburn over this.
 

tbb345

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dcmissle said:
This is why you don't send a carpenter to do electrical work or an electrician to do plumbing. Goddamit Yee.

And honestly, if I'm the NFLPA, this is not the factual record on which I want to litigate whether the NFL has a right to personal player information or devices. They have to represent all comers -- but now I understand why they might have been indeed settlement talks with the League.
I am not a lawyer, don't claim to be and you clearly know what you are talking about. But doesn't the fact that they know this and still wouldn't settle mean that they know that there is more to this phone thing than Notorious ROG is letting on?
 

ivanvamp

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MarcSullivaFan said:
It has some bearing on whether the penalty for non cooperation is appropriate. More importantly, it has the potential to prejudice the judge against Brady. Judges are human beings. Any lawyer representing Brady at this point would have major major heartburn over this.
 
This is news to us, but it's not news to Kessler.  They're fighting this tooth and nail, and I bet they have a good answer prepared for the judge.  
 
Now maybe they were willing to settle because of this, who knows.  But while this caught US by surprise, it sure as hell didn't catch Kessler by surprise.  He knew about this a while ago for sure.
 

86spike

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Myt1 said:
He's got a good chance of getting one.
Can you guys expound on that?

What will the NFLPA need to argue to get an injunction and is the sentiment that they also must prove they "are likely to win" an accurate depiction of the process?
 

HowBoutDemSox

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Marciano490 said:
 
How much you figure it'd cost to have a team of contract attorneys do that legwork?
The best part about Roger saying that going through phone records and contacting the other party to figure out what was said is too impractical? That this was basically the entire point, and process, of the Mueller investigation - to go through the NFL's phone records and see who league employees had been talking to. When it's to save Roger's ass, of course it's not impractical.
 

natpastime162

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DeJesus Built My Hotrod said:
 
Here is the thing though - if you buy the sting aspect to this, it suggests that the NFL knew it would find something.  We may never really know if the deflated balls in the AFCG were deliberate or via ideal gas law but the NFL checked, found what they thought was a violation and the rest is history.  
 
Given that the NFL has been so hardline on this suggests one of two things - either that the league HQ is truly staffed with people who irrationally hate the Patriots or they thought they caught Brady for something they knew he had been doing in the past and instead of admitting it, he dug in and was uncooperative, "destroying evidence" in the process.  
 
To be clear, I do not think Brady should have handed his phone over to investigators (for all the reasons already mentioned in this thread) but destroying it looks bad for him.  If you buy the latter scenario, it also makes it easier to see why the NFL appears to be ok with dragging one of its more high-profile names through the mud.  Because otherwise this looks like a pure witch-hunt without much of a rational motive. 
 
I say this as a Patriots fan but I simply cannot be sure that Brady is innocent, even if the NFL has handled this thing horribly all the way along. 
 
If punishment is an indication of how severe the NFL views the violation, and it was a sting, how did they allow a "mockery" of a game to occur?  This wasn't Ocean's 11, nor even the '51 Giants.  McNally walked, by himself, right past NFL Officials, stopped at the bathroom for 2 minutes, then to the field.  If anything, they were woefully unprepared for when the Colts informed them of the intercepted ball's PSI, resulting in a sloppy investigation.
 

LuckyBen

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tbb345 said:
I am not a lawyer, don't claim to be and you clearly know what you are talking about. But doesn't the fact that they know this and still wouldn't settle mean that they know that there is more to this phone thing than Notorious ROG is letting on?
Good point. We are so caught up on the broken phone, but Brady and his team have known about this for a while. This is a bombshell for the public, but not for the players association. I guess we lose in the public eye once again.
 

soxhop411

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tbb345 said:
I am not a lawyer, don't claim to be and you clearly know what you are talking about. But doesn't the fact that they know this and still wouldn't settle mean that they know that there is more to this phone thing than Notorious ROG is letting on?
Good point
 

AB in DC

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There's something here that everyone has missed. 
 
 
Remember when the Wells Report came out, and the #1 spin was that "Brady lied"?  You know, about knowing McNally and all?  Not mentioned _at all_ in the 20-page decision.  Not one word.
 

Bongorific

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Not to over exaggerate what has already been said, but the relationship between the labor and management has become very, very toxic. There may very well be a work stoppage in 2020.
 

edmunddantes

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Bongorific said:
Not to over exaggerate what has already been said, but the relationship between the labor and management has become very, very toxic. There may very well be a work stoppage in 2020.
barring a complete collapse of the Union. Yes. Pretty much guaranteed.

So at this point since everything has been so counter factual. I'm going to say there will be no work stoppage at all. :)
 

scotian1

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The NFLPA would be crazy not to fight for guaranteed contracts and neutral arbitration in their next contract. With the money this league pulls in, I can't believe it isn't in place now.
 

wutang112878

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Maybe its answered somewhere and I just havent seen it, but if the phone was destroyed prior to him meeting with Wells did Wells know about it at the meeting?  If not, how did the NFL come to gain this knowledge?
 

cshea

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My understanding is Brady's team told the NFL the phone was destroyed on 6/18, 5 days prior to the appeal hearing. I didn't think Wells knew it was destroyed, but I could've missed it. If he knew, why omit it from the WR? Trying to home back an ace in their sleeve?
 

Ed Hillel

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cshea said:
My understanding is Brady's team told the NFL the phone was destroyed on 6/18, 5 days prior to the appeal hearing. I didn't think Wells knew it was destroyed, but I could've missed it. If he knew, why omit it from the WR? Trying to home back an ace in their sleeve?
Yee sent them a letter on 6/18. God knows if the NFLPA had any idea he was doing it.
 

AB in DC

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RedOctober3829 said:
https://twitter.com/RyanHannable/status/626144752438759426
 
If this is the entirety of the NFLPA position then it's woefully inadequate.  The whole premise behind the NFL's action -- in particular, the degree of punishment -- was that the supposed deflation provided a competitive advantage.  But nowhere does Wells or the NFL give any rationale for this! 
 
I know what people say about the court appeal being limited to process, not substantive, but surely it's a process issue to punish someone for a competitive violation when there's no evidence that a competition violation (even if the balls were deflated) ever occurred.
 
 
Hoping that Kessler is just keeping this as the ace up his sleeve, but I find this omission fairly glaring.
 

MarcSullivaFan

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AB in DC said:
 
If this is the entirety of the NFLPA position then it's woefully inadequate.  The whole premise behind the NFL's action -- in particular, the degree of punishment -- was that the supposed deflation provided a competitive advantage.  But nowhere does Wells or the NFL give any rationale for this! 
 
I know what people say about the court appeal being limited to process, not substantive, but surely it's a process issue to punish someone for a competitive violation when there's no evidence that a competition violation (even if the balls were deflated) ever occurred.
 
 
Hoping that Kessler is just keeping this as the ace up his sleeve, but I find this omission fairly glaring.
Sorry, but you're entirely wrong about this. They are making exactly the right arguments.
 

Reverend

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86spike said:
Can you guys expound on that?
What will the NFLPA need to argue to get an injunction and is the sentiment that they also must prove they "are likely to win" an accurate depiction of the process?
Myt1 and dcmissle did in the last thread--page 27, posts 1334 and 1335. Mobile won't let me copy and paste it.
 

baghdadjamie

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DrewDawg said:
 
 
Also, the NFL could say that they would have no way of knowing if that list was complete.
 
Sure they could but then they would look even more retarded. His phone bill will have a record of every number he has sent/received a call/text. You bounce that period of texts/call off the list.
 

Stu Nahan

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The optics of the phone look terrible. With that said, the PR war for the Pats was lost ages ago. There are a couple of things here that don't make sense to me though. If McNally and Jastremski were actually deflating balls for Brady, why haven't they come out and talked? What would be their motivation to protect him and the Pats? They would have a story that could net them some good money. I don't understand why they would be sitting on it.
The second thing is how this mess actually got started. IIRC, there was a report that the Colts had concerns about the Pats' footballs in the November game. That game was played in Indianapolis and the Patriots wouldn't have had their personnel handling the balls after inspection. That would mean that the Colts just made this up out of whole cloth. Even if the Ravens tipped them to the balls, that game was played in even colder conditions which means the balls used in that game would have deflated on their own as well. It's not hard to see that this is bullshit if one is willing to look at facts and ignore the noise.
 

ifmanis5

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Toobin on CNN: Brady looks like an idiot for continuing to fight this, he obviously destroyed his phone to hide his guilt. NFLPA are idiots, should just take their medicine, the Pats, the union and TB look like losers for continuing to fight this.
 

Bleedred

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ifmanis5 said:
Toobin on CNN: Brady looks like an idiot for continuing to fight this, he obviously destroyed his phone to hide his guilt. NFLPA are idiots, should just take their medicine, the Pats, the union and TB look like losers for continuing to fight this.
I saw that. It's spectacular how so many people comment conclusively when they have such a poor grasp of the facts.  Rachel Nichols was much better
 

dcmissle

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baghdadjamie said:
Sure they could but then they would look even more retarded. His phone bill will have a record of every number he has sent/received a call/text. You bounce that period of texts/call off the list.
The right guy shows up, just in time. So with this information, one presumably could match it against what Jastremski and McNally provided, right?

The theory behind obstruction has always been that the phone records of those two might be incomplete and that incriminating stuff could be on TB's phone alone. But if there is a complete match between their content and Tom's records, nothing among these three was lost.

But, unfortunately, this would not include incriminating messages to other parties, and spoliation is spoiliation.

It all looks incriminating, and what Tom has just lost in the court's eyes is the benefit of the doubt. Especially if that earlier phone is still hangin around.
 

DJnVa

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baghdadjamie said:
Sure they could but then they would look even more retarded. His phone bill will have a record of every number he has sent/received a call/text. You bounce that period of texts/call off the list.
 
How would they have Brady's phone bill? Brady didn't give them one. They have no legal way of acquiring one.
 
They'd have to accept the list that Brady provides was everyone and they have nothing to check that against.
 

HowBoutDemSox

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DrewDawg said:
 
How would they have Brady's phone bill? Brady didn't give them one. They have no legal way of acquiring one.
 
They'd have to accept the list that Brady provides was everyone and they have nothing to check that against.
Well's offer was to look at whatever Brady's team provided and take their word that it was everything relevant, so even in the NFL's model of cooperation, yes, they just have to accept that they were given everything.
 

ivanvamp

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The PR battle may be lost on a lot of fans in that they already think the Patriots, and now Brady, are cheaters.  
 
But when this goes to court, there's still a great argument (really, several) that the NFLPA will use on Brady's behalf, and I still think there's a great chance that this entire suspension gets tossed out.  
 
If that happens, then the PR battle can continue all over again if Brady et al want it to.  They can subsequently produce reams of evidence and papers ripping the entire thing to shreds.  I don't know that they'll want to do that.  Who knows.
 
If they lose in court, well, then, that's that.  
 
It is still incredible to me that the actual science tells us all that NOTHING HAPPENED.  Like, AT ALL.  And that Brady is getting punished for demanding that footballs be set to 12.5 psi, and for not giving Goodell his electronic information (though apparently, according to Brady's camp, he DID), which is his right.
 

dcmissle

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djhb20 said:
Toobin's not an idiot - was he talking about the PR or the legal case?
He is not. But he also embarrassed himself on Court TV predicting that OJ would be convicted in the murder case because the jury came back quickly.

But let's be honest. If we were to swap out Tom Brady and swap in Peyton Manning, we'd be right there with Toobin.