#DFG: Canceling the Noise

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


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Eddie Jurak said:
What is the purpose they are trolling with? Trying to tick off Berman? Are they looking for an extreme opinion that they can shoot down on appeal?
The NFL appears to have concluded that they can do nothing to influence/change Berman's ruling, so they might as well portray Brady as Keyser Soze.

It's a bit like watching a compulsive gambler walk over to the roulette table and loudly proclaim that he's got the winner and everyone who doesn't follow him is a moron as he places his last $1,000 on 12.
 

Harry Hooper

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Hoya81 said:
Jastremski said that Brady would regularly give him a Xmas or end of season tip (up to $1500) and helped him get tickets other sporting events. This is in addition to regularly signing items for JJ and other Pats employees, some of which JJ flipped to McNally.

NFL is using TB's generosity to low level employees against him.
 
 
Roger would never do anything for free. He's always trying to hook in another revenue stream. He can't believe Brady would be generous.
 
 
Since two posters just referenced Brady and McNallyBird, FTR Brady and Bird never exchanged messages. Brady only texted Jastremski.
 

DegenerateSoxFan

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Can we just rename this thread "LEGAL ISSUES. And no, no one is filing a f/&$@!g defamation case. So don't ask."?

Edit: Sorry, wrong thread. But people still keep asking in all of this. Enough already.
 

Harry Hooper

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It will be interesting to see what Peter King does from here. The NFL clearly didn't answer the challenge on evidence that he put to them.
 

Granite Sox

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genoasalami said:
 
Daniel Wallach ‏@WALLACHLEGAL  13m13 minutes ago
NFL now says Brady more than "generally aware"; that he "knew about, approved, consented to, & provided inducements in support of tampering"
Daniel Wallach ‏@WALLACHLEGAL  12m12 minutes ago
NFL's claimed evidence that Brady had "direct involvement" in ball tampering: 1. Text from Jastremski to McNally re: convo w/ Brady (cont.)
Daniel Wallach ‏@WALLACHLEGAL  10m10 minutes ago
2. "Sudden spike in communications between Jastremski and Brady following the AFC Championship Game" (cont.)
Daniel Wallach ‏@WALLACHLEGAL  9m9 minutes ago
3. "Evidence of McNally’s demands for cash, clothing and autographed items from Brady, some of which Brady provided"
Daniel Wallach ‏@WALLACHLEGAL  8m8 minutes ago
Other NFL bases for concluding Brady was "involved": 4. Goodell's "assessment of Brady’s credibility" at the arbitration hearing (cont.)
 
 
Berman specifically qualifies that this is only about the AFCCG, and the NFL comes back with this?
 
Shameless and embarrassing.
 
Edit: Harry Hooper quicker and cleverer... 
 

Harry Hooper

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The team penalties for the Pats make sense now. Clearly Kraft was giving out those rings to get everyone to clam up.
 

rodderick

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Hasn't Berman already indicated that "evidence" regarding a scheme to deflate footballs is pretty much irrelevant if it doesn't pertain to the AFCCG? If that's the case, the texts from McNally to Jastremski prove exactly jack shit.
 

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DrewDawg said:
Once in a while I get the idea that the lawyers are telling Goodell "no, we really don't want to include that" and he's all like "Yes dammit!! Put it in there!"
 
Roger reminds me of GWB.  Their people try to prepare them as much as they possibly can, but you know they're shitting bricks behind the curtain every time George/Roger had to speak in front of a bunch of people and answer questions.
 

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rodderick said:
Hasn't Berman already indicated that "evidence" regarding a scheme to deflate footballs is pretty much irrelevant if it doesn't pertain to the AFCCG? If that's the case, the texts from McNally to Jastremski prove exactly jack shit.
No.

Nothing Berman did the other day for public consumption indicates much of anything, but the weird frenzy with which some in the media seized upon that specific day surprised me more than a little bit.
 

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The NFL doesn't give a damn about this issue or Brady. They want the judge to rule in their favor that they have carte blanche. This is a strike to win the war however likely or unlikely.
 

DennyDoyle'sBoil

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Myt1 said:
No.
Nothing Berman did the other day for public consumption indicates much of anything, but the weird frenzy with which some in the media seized upon that specific day surprised me more than a little bit.
It's such a bizarre proceeding. Have you ever had a case where the judge essentially allows an oral argument in the middle of the briefing? That said, I disagee that the proceedings are as immaterial as you do with respect to tea leaf reading. There were some good signs for Brady. Nothing to say he's going win, or even that he's ahead or tied on points. But he's in the game. Which was not a foregone conclusion.
 

LuckyBen

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DennyDoyle'sBoil said:
It's such a bizarre proceeding. Have you ever had a case where the judge essentially allows an oral argument in the middle of the briefing? That said, I disagee that the proceedings are as immaterial as you do with respect to tea leaf reading. There were some good signs for Brady. Nothing to say he's going win, or even that he's ahead or tied on points. But he's in the game. Which was not a foregone conclusion.
It really is amazing that Goodell made sure to have this unseen power written into the CBA and yet has found so many ways to screw up. For Tom to have any chance right now is a positive. How anyone who enjoys footballs fails to see how power hungry Goodell is, is beyond me.
 

djbayko

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LuckyBen said:
It really is amazing that Goodell made sure to have this unseen power written into the CBA and yet has found so many ways to screw up. For Tom to have any chance right now is a positive. How anyone who enjoys footballs fails to see how power hungry Goodell is, is beyond me.
Did Goodell have it written in the CBA? I was under the impression that it's been dormant since before his time.
 

LuckyBen

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djbayko said:
Did Goodell have it written in the CBA? I was under the impression that it's been dormant since before his time.
I guess he made a point not to lose it. Just no one before him felt the need to abuse the power. Still amazes me what a fuck up RG and his team are.
 

ElcaballitoMVP

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Looks like the NFL is sticking with "it doesn't matter what evidence we have, the CBA says we can do what we want, the court can't change that". Hopefully, the judge doesn't take too kindly to that approach. 
 

Myt1

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DennyDoyle said:
It's such a bizarre proceeding. Have you ever had a case where the judge essentially allows an oral argument in the middle of the briefing? That said, I disagee that the proceedings are as immaterial as you do with respect to tea leaf reading. There were some good signs for Brady. Nothing to say he's going win, or even that he's ahead or tied on points. But he's in the game. Which was not a foregone conclusion.
I think that the public "settlement conference" was sufficiently unusual that it was done for a reason.

We're in sort of a sparsely charted land, right? Settlement is supposed to be the brightest prospect, but the secrecy and protections of a confidentiality and non-disclosure provision that would otherwise be a requirement are unlikely to happen or be effective.

Quasi-merits briefing and argument aren't so unusual, especially in TRO or MTD stages, but this is sort of funky and different. I'm hesitant to offer any sort of a guess about pretty much anything.

That being said, the notion that Brady needed to have involvement with deflation specifically for the AFC Championship Game strikes me as generally unconvincing.
 

NortheasternPJ

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ElcaballitoMVP said:
Looks like the NFL is sticking with "it doesn't matter what evidence we have, the CBA says we can do what we want, the court can't change that". Hopefully, the judge doesn't take too kindly to that approach. 
If this was the era truth why'd they rush to a federal court to uphold it? If the court has no say then what's the point of filing

We all know why they did it in reality but odd someone would go to court to tell the court the court had no say.
 

Super Nomario

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Myt1 said:
That being said, the notion that Brady needed to have involvement with deflation specifically for the AFC Championship Game strikes me as generally unconvincing.
Obviously deflating footballs for any game is a penalty, but the scope of the Wells Report was only for the AFCCG, and the report did not draw any conclusions about whether tampering happened in other games. So the evidence in the report is kind of a hodgepodge - over here, you've got some texts that vaguely indicate that there is a long-running deflation scheme plus some on-going memorabilia donations by Brady, but there's ultimately not enough evidence to make any conclusions on that front; and over there, you've got McNally disappearing on the day of the game and the PSI readings. To reach the conclusions they did, Wells et al had to tie the events of the day to the notion of a long-running scheme, even though they acknowledge that they don't have enough evidence to conclude such a scheme existed.
 

Omar's Wacky Neighbor

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Myt1 said:
No.

Nothing Berman did the other day for public consumption indicates much of anything, but the weird frenzy with which some in the media seized upon that specific day surprised me more than a little bit.
That's one thing I find rather humorous:  all the media types and lay persons opining on how Kessler could have handled himself better in front of Berman.  Just one e.g.:  MFB opened opened either Thur or Friday's show by discussing (almost dissecting) what Kessler did, and (just short of breaking out the telestrator) what Kessler should have done to better drive his points home.
 

edmunddantes

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Everyone is focused on legal since that is what matters in front of Berman. However this explicit part in the NFL brief about the merchandise is beyond infuriating.

At least before, Wells could use the excuse he is not aware of the longstanding tradition of low level employees and others receiving signed merchandise from players.

In this brief, the NFL people that should know better are now doubling down on that as a core pillar of Brady's scheme.

It goes to show what a railroad job this is for anyone that is unconvinced and knows anything about pro sports.
 

Steve Dillard

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DennyDoyle'sBoil said:
It's such a bizarre proceeding. Have you ever had a case where the judge essentially allows an oral argument in the middle of the briefing? That said, I disagee that the proceedings are as immaterial as you do with respect to tea leaf reading. There were some good signs for Brady. Nothing to say he's going win, or even that he's ahead or tied on points. But he's in the game. Which was not a foregone conclusion.
 
Its a bit unusual, but not bizarre.  The day before Brady's hearing, I was in the SDNY arguing a summary judgment motion that hasn't been filed.  Judge had us argue our 3 page pre-motion letters, and at the end told the parties how he's likely to rule, but he'd have to look at the motions when filed.  (Followed by the obligatory "have you folks talked about settling?" talk. That usually helps settle things.)
 
Here, I get the sense the Judge's law clerks know everything about the case, and have gotten him up to speed far beyond what he would be in an ordinary case.  I bet the clerks are 26 year old lawschool grads who were able to give the judge the entire story of who Brady is and how Goodell screwed up.  That is why Berman said he knew about the case and has been able to broach facts at the hearing that neither side had presented in their opening briefs.
 

PBDWake

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BigSoxFan said:
Brady isn't retiring in 2 years unless he suffers some catastrophic injury.
 
In related news, the NFL would like to introduce the new Vice President of Player Integrity, Bernard Pollard
 

Omar's Wacky Neighbor

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BigSoxFan said:
Brady isn't retiring in 2 years unless he suffers some catastrophic injury.
WE know that, but from Berman's perspective, a 38 y/o with four rings, young children, and a supermodel wife waiting in the wings,  leaving the game on his own terms at age 40 isnt too much of a leap.
 
(I doubt Berman or any of his staff keeps up with TB's assertions to play into his mid forties)
 

TomTerrific

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Steve Dillard said:
 
Here, I get the sense the Judge's law clerks know everything about the case, and have gotten him up to speed far beyond what he would be in an ordinary case.  I bet the clerks are 26 year old lawschool grads who were able to give the judge the entire story of who Brady is and how Goodell screwed up.  That is why Berman said he knew about the case and has been able to broach facts at the hearing that neither side had presented in their opening briefs.
 
That's really interesting, assuming it's true. It's not an angle I've seen anyone else take. Is this just your "sense" of it, or is there something more specific you're basing this on (that is, more specific than having been around SDNY)?
 

Steve Dillard

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Just my guess, based in large part on the judge's initial order to the parties to limit their submissions, and that he had read everything, which was issued before the NFLPA even had filed its response. Perhaps Berman is a sports fan, but it seems more likely that law school clerks are nfl fans and since they have had a full year with the judge and are finishing up their term probably have more leeway to converse with him freely about their views at what really happened (the back story).
 

Eddie Jurak

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Steve Dillard said:
 
Its a bit unusual, but not bizarre.  The day before Brady's hearing, I was in the SDNY arguing a summary judgment motion that hasn't been filed.  Judge had us argue our 3 page pre-motion letters, and at the end told the parties how he's likely to rule, but he'd have to look at the motions when filed.  (Followed by the obligatory "have you folks talked about settling?" talk. That usually helps settle things.)
 
Here, I get the sense the Judge's law clerks know everything about the case, and have gotten him up to speed far beyond what he would be in an ordinary case.  I bet the clerks are 26 year old lawschool grads who were able to give the judge the entire story of who Brady is and how Goodell screwed up.  That is why Berman said he knew about the case and has been able to broach facts at the hearing that neither side had presented in their opening briefs.
With any luck at least one of them is a diehard Pats fan. :)
 

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Steve Dillard said:
 
Its a bit unusual, but not bizarre.  The day before Brady's hearing, I was in the SDNY arguing a summary judgment motion that hasn't been filed.  Judge had us argue our 3 page pre-motion letters, and at the end told the parties how he's likely to rule, but he'd have to look at the motions when filed.  (Followed by the obligatory "have you folks talked about settling?" talk. That usually helps settle things.)
 
 
I've had the exact same experience in SDNY but with a different judge (not a he).  Intense oral argument based on three page pre-motion letters.  My  cases are in a lot of different districts and this is the only one that had arguments before the briefs were filed but it seems to be a consistent practice within this court. 
 
Since I've read this whole thread but haven't posted I just want to ask if anyone has thought of a defamation suit?  Seems like a natural...
 

Harry Hooper

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Will any of the media latch on to the NFL's claim that the Commish could increase the penalty in an appeal hearing, and recognize it as a grab for completely unfettered power?
 

dcmissle

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lambeau said:
http://www.si.com/nfl/2015/08/14/tom-brady-filing-roger-goodell-deflategate-federal-case-analysis
 
McCann weighs in on Friday's filings, calling NFLPA's "extraordinary," "seething", "unforgiving", and "past the point of no return" for settlement.
This is where academics are at sea. I can easily characterize the NFL filing yesterday as haughty, arrogant, deeply personal and "past the point of no return". But that does not mean this won't settle.

Do I think it will? No. For reasons that are mainly structural and, increasingly I think, can be laid at the feet of 31 NFL owners. But you can't go filing to filing, day to day, on this. I have seen cases with litigants that were out literally to destroy each other, and they settled.
 

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PaulinMyrBch

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MYRTLE BEACH!!!!
I don't think the NFL settles and I don't think it has anything to do with the NFLPA brief. The NFLPA brief is designed to win the hearing, they know they are in it for the long haul b/c of the NFL's stance in the settlement conferences.
 
Goodell would rather have a judge rule against him and go to the owners saying we don't agree with the ruling and then appeal. If he settles, its an admission that he has been wrong or at least not 100% correct throughout the process, and I don't see him doing that. Not with the demand the Brady admit the Wells report and the demands he required of the PA as a starter to settlement discussions. He truly believes that the Wells report is correct, that Brady is guilty and lying, and he's not going to come off of that voluntarily. He's arrogant and even if Berman shoves it down his throat, he'll disagree. 
 

DennyDoyle'sBoil

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Steve Dillard said:
Its a bit unusual, but not bizarre.  The day before Brady's hearing, I was in the SDNY arguing a summary judgment motion that hasn't been filed.  Judge had us argue our 3 page pre-motion letters, and at the end told the parties how he's likely to rule, but he'd have to look at the motions when filed.  (Followed by the obligatory "have you folks talked about settling?" talk. That usually helps settle things.)
Interesting, and a good reminder that regional differences really do matter. Unlikely to happen where I practice, except maybe on discovery stuff. And probably a good reminder to non-lawyers trying to figure out what the heck is going on that in sorting through the information here the stuff from those who practice in SDNY is higher quality.
 

Senator Donut

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Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. In the fall 2015 semester, he will teach an undergraduate course at UNH titled “Deflategate.” McCann is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.
Do any SoSHers attend UNH Law?
 

RetractableRoof

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Question for the legal team:
 
Assume Berman during any ruling skewers the NFL and declares that Wells was not independent, despite proclamations to the contrary, citing all the various reasons that are being bandied about.  Does this give Kraft (if were inclined) room or an opening to then sue the NFL on the basis that they were punished under false pretenses, i.e. an independent investigation that wasn't?  That as a member organization it was damaged and denied reasonable treatment or due process?
 
Obviously I'm not asking this very clearly, but if Wells is asked to testify and invokes any kind of attorney client privilege - doesn't that also muddy the Patriots organization punishment?
 
I'm not asking if Kraft WILL do anything, but simply if it could be revisited based on any court outcome. 
 

djbayko

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Steve Dillard said:
Just my guess, based in large part on the judge's initial order to the parties to limit their submissions, and that he had read everything, which was issued before the NFLPA even had filed its response. Perhaps Berman is a sports fan, but it seems more likely that law school clerks are nfl fans and since they have had a full year with the judge and are finishing up their term probably have more leeway to converse with him freely about their views at what really happened (the back story).
Your overall point might be correct, but the NFLPA had filed its competing motion in MN the day before Berman issued that statement. People here, including me, assumed that is the reading he was refererring to on the NFLPA side.
 

edmunddantes

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Barring outside pressure of NFL media constantly haranguing NFL official every chance they get about how it's insane a penalty on team can be held even though they got destroyed in court.

And what are the chance the NFL media suddenly grows a set of balls?

Otherwise owner bylaws pretty much tie Kraft's hands.

TL;DR

Not a chance at all
 

Alcohol&Overcalls

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Question for the legal team:
 
Assume Berman during any ruling skewers the NFL and declares that Wells was not independent, despite proclamations to the contrary, citing all the various reasons that are being bandied about.  Does this give Kraft (if were inclined) room or an opening to then sue the NFL on the basis that they were punished under false pretenses, i.e. an independent investigation that wasn't?  That as a member organization it was damaged and denied reasonable treatment or due process?
 
 
It's very hard to definitively say without knowing the ins and outs of the [edit: ownership agreement], but since Kraft chose not to pursue any appeal options, it is possible (maybe even likely) he waived the right to take it up the ladder. Generally, one has to exhaust the existing available remedies or appeal stages before making the leap into court. That's without getting into the outside considerations that would affect Kraft, including precedent for future owner/league disputes. I'd think it extremely unlikely. 
 

PBDWake

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McCann had an interesting point on the relevance the independence of Ted Wells, but I'm not sure how legally relevant it will be. Basically, he said that the terms of the encounter with Ted Wells are different as represented to Brady. I inferred from what he said that Berman might not let the NFL get away with representing Wells as independent when he was actually an attorney for the NFL, as Brady might feel comfortable with just Yee in an independent setting, but union representation would most certainly have been present when meeting with a representative for the NFL. So the NFL is under no obligation to hire an independent investigator, but they can't send out an underling of Goodell and tell Tom he is independent.
 

PBDWake

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While I do not think we are ever getting those picks back, if ever there was a case to be made for it, it likely won't happen until after the season. You might, might, be able to get someone to listen if you get access to the cold weather PSI numbers and there are a good sample size of games that keep in line with the Patriots PSI drops, and combine that with Goodell getting spanked by Berman in court, and maybe some external pressure will come. But in all honesty, the picks are gone. We're not getting them back, even with overwhelming evidence. You've seen the NFL's stance on their briefs. The actual facts don't matter. How Goodell interprets them is the only factor in doling out discipline, and he has unimpeachable latitude in his ability to issue it.
 

Omar's Wacky Neighbor

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Alcohol&Overcalls said:
 
It's very hard to definitively say without knowing the ins and outs of the CBA, but since Kraft chose not to pursue any appeal options, it is possible (maybe even likely) he waived the right to take it up the ladder.
Color me naive, but what if anything does the CBA have to do with Kraft's ownership interaction with the NFL?
 
(unless you meant the standard ownership agreement with the league.....?)
 

Omar's Wacky Neighbor

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troparra said:
 
Is the bolded considered true - what Exponent did with Deflategate is considered outstanding, and is exactly what other science/engineering firms strive for?
Thus, the legal process is infused with shoddy, biased, misleading and falsified science? 
If so, yikes. 
You gotta read some John Grisham books.
 

H78

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Nothing would make me happier, as massively unlikely as it is, than to see Roger Goodell have to go up to the podium at the 2016 NFL draft and say, "With the 32nd pick of the 2016 NFL Draft, the New England Patriots select..."
 

DennyDoyle'sBoil

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PBDWake said:
McCann had an interesting point on the relevance the independence of Ted Wells, but I'm not sure how legally relevant it will be. Basically, he said that the terms of the encounter with Ted Wells are different as represented to Brady. I inferred from what he said that Berman might not let the NFL get away with representing Wells as independent when he was actually an attorney for the NFL, as Brady might feel comfortable with just Yee in an independent setting, but union representation would most certainly have been present when meeting with a representative for the NFL. So the NFL is under no obligation to hire an independent investigator, but they can't send out an underling of Goodell and tell Tom he is independent.
Maybe there is a union greivance there. Can't see how it adds much to the current case beyond the points that have been made. We don't really know what Wells' standard patter was before each interview. For the arbitration challenge, I would think he would have to describe specifically what he would have said or done differently had Wells' non-independence been revealed. It's hard to believe Brady could credibly say he didn't understand anything he said could be used against him.