#DFG: Canceling the Noise

[Bleedred]

 
CBAs sound more absurd every time one of the SOSH lawyers chimes in.  The NFL created a proxy war out of deflated footballs and Brady's career is collateral damage.

True, but the players agreed to the process in their negotiations with the NFL.   They've always been a weak union, and because the average career of a NFL player is so short, most of the union is just not willing to go to the mat on issues as nuanced as commissioner power to hear penalty decisions as arbitrator.  It's not something these guys think about and thus, the owners smoke them in the negotiations on these matters.  It MAY change next time, but if I had to bet on it, I'd say it won't.  

 

[Myt1]

I think the idea is that some RG has said Brady cheated, Brady would need to prove that RG didn't really believe that Brady had cheated in order to show defamation.

He'd have to show that he didn't cheat, too. And proving a negative like that one is pretty difficult.

For a whole bunch of reasons, it's a very unlikely move. And those reasons are generally pretty beneficial to a society that generally likes people to be able to say what's on their minds. There's a fundamental benefit to society when speech has broad protections, and part of the trade off is that shitty speech sometimes goes without repercussion. It's not so dissimilar conceptually to something like the "beyond a reasonable doubt" protections of criminal law.

 

[Leather]

Kraft's point is incoherent. Once the arbitration railroading started, it was bound to end up in court and the reason the procedure was so butchered in the first place was because of the process he and his fellow owners pushed so their proxy could maintain absolute power.

This is the mess it is because of the lack of legal procedural safeguards, not because of them. And it's exactly the system Kraft wanted.

 
I took Kraft's lawyers statement as a "crafty" (read: spineless) way to impotently bemoan the whole situation to the press without assigning blame to Goodell.
 
I mean, give me a fucking break.  Ya, Bob, "lawyers" are the problem. 

 

[JeffLedbetter]

I can understand the players not caring previously about RG's authority on discipline ... it is not logical for him to be anything other than impartial in such situations. RG has created an artificial adversarial relationship with players over discipline for no good reason at all. It seems like he does it just to prove that he has the power. It defies everyone's best interests to come down unnecessarily hard on players, but this is the direct result of having gone too light on Rice to start and getting hammered publicly for it. 
 
And therein lies the reason RG can't now acknowledge any mistakes. He acknowledged mistakes with the Rice case, misinterpreting what actually happened. He can't do that twice and keep his job. 

 

[tims4wins]

What about the fact that the balls went missing - unprecedented according to Anderson - and nothing was done about it despite the NFL being on high alert?

 

[nighthob]

True, but the players agreed to the process in their negotiations with the NFL.   They've always been a weak union, and because the average career of a NFL player is so short, most of the union is just not willing to go to the mat on issues as nuanced as commissioner power to hear penalty decisions as arbitrator.  It's not something these guys think about and thus, the owners smoke them in the negotiations on these matters.  It MAY change next time, but if I had to bet on it, I'd say it won't.

In fairness to the NFLPA, Goodell is misleading with the truth. The players did agree to these conditions 20+ years ago when the commissioner was the eminently reasonable Pete Rozelle. The abuse of that provision is a very recent development.

 

[HriniakPosterChild]

True, but the players agreed to the process in their negotiations with the NFL.   They've always been a weak union, and because the average career of a NFL player is so short, most of the union is just not willing to go to the mat on issues as nuanced as commissioner power to hear penalty decisions as arbitrator.  It's not something these guys think about and thus, the owners smoke them in the negotiations on these matters.  It MAY change next time, but if I had to bet on it, I'd say it won't.  

I'd say that, too.

When the next CBA is negotiated, what percentage of the NFLPA will have even been in the league way back in 2014/2015? Like you say, the career of a player is short.

 

[Harry Hooper]

   What Kraft should be pissed about is that he was played, if you believe Kraft's statement about expectation of leniency after the Patriots agreed not to fight the team penalties.  Of course, I don't believe Kraft's statement, so i don't credit that either.  

 
 
Why do you not believe Kraft? We know Vincent told Adrian Peterson one thing and then the NFL went and did something else for punishment. It also seems like the Pats were told suspending the Dorito Dinks would be helpful, and then the NFL used that like a cudgel against the team.
 
I think it also might have been a message given to Kraft through another owner, "Bob, if you accept the penalty, things will probably go easier for Brady." Such a message might have been given at the request of NFL HQ, or it could even have been a fellow owner giving bad advice to Kraft. Perhaps some of the owners might have feared that Kraft would go into full attack on the NFL, and tried to divert him with this suggestion.

 

[jsinger121]

Adam Schefter ‏@AdamSchefter  1m1 minute ago
Former Dolphins OL coach Jim Turner is filing a defamation lawsuit in Florida against Ted Wells for Wells Report in Feb 2014, per source.

 

[Bunt4aTriple]

I guess Turner doesn't count as a public figure?  I heard him interviewed by D&H after the report was released and I found it hard to be sympathetic, but any port in a storm, right?  
 
 
https://twitter.com/AdamSchefter/status/630757427282100224
 

Adam SchefterVerified account‏@AdamSchefter

Former Dolphins OL coach Jim Turner is filing a defamation lawsuit in Florida against Ted Wells for Wells Report in Feb 2014, per source.

 

[drbretto]

Are we talking about a different quote from Kraft? I took his "sometimes you have to get the lawyers out of the room" as more a figure of speech. Or did I miss a quote?

 

[Koufax]

I believe that we are discussing his July 29 statement in response to the results of the laughable appeal.

 

[drbretto]

Yeah, that's the same one. I think people are reading too much into that. He's just lamenting because this couldn't get resolved with a rational conversation.

 

[soxhop411]

 
At a time when attorney Ted Wells has become a focal point in one NFL saga, he now also is being called to answer for his first report for the NFL last year on theMiami Dolphins' bullying and harassment scandal.
Former Dolphins offensive line coach Jim Turner, who was fired by Miami after his actions were questioned in the first Wells Report in February 2014, is filing a lawsuit in U.S. District Court for the Southern District of Florida against Wells and his law firm, Paul Weiss of New York, seeking damages for defamation, according to an official familiar with the case.
Turner, who thinks his reputation and career have been unfairly impacted, believes Wells' report on the Dolphins negatively and perhaps permanently affected his ability to land another NFL coaching job.
The first Wells Report focused mainly on the relationship between former Dolphins offensive linemen Jonathan Martin and Richie Incognito, and the culture in which they worked.
In the lawsuit, Turner alleges the NFL commissioned Wells and Paul Weiss to write a report that would placate the public and assign blame to certain individuals such as Turner, while the law firm was well-paid and well-positioned for future work on NFL cases such as the one that turned out to be Deflategate.
Turner's attorney, Peter Ginsberg, believes that Wells and Weiss failed to include significant testimony from former and current Dolphins coaches and players in the report, opting instead to blame the events on, among others, Turner.
Ginsberg also believes Turner was falsely accused of helping create an atmosphere that allowed bullying and harassment to happen and, even though Wells knew the accusations were not true, he included them in the report anyway, damaging Turner's reputation and inflicting emotional distress, pain and suffering.
Incognito told Newsday that Wells left out information that could have helped his case in the published report. Asked for specifics on what was left out of Wells' report in his case, Incognito said: "Teammate testimony, stuff like that."
The Dolphins wound up firing Turner for what they thought was his role in the bullying scandal that Wells documented.
This case will call into question whether Wells truly was working as an independent investigator, an issue that has come up in connection to the New England Patriots' Deflategate case as well.

http://espn.go.com/nfl/story/_/id/13409212/jim-turner-former-miami-dolphins-ol-coach-file-defamation-lawsuit-attorney-ted-wells

 

[mwonow]

I think the idea is that some RG has said Brady cheated, Brady would need to prove that RG didn't really believe that Brady had cheated in order to show defamation.

I think the NFL is being very careful about what it says publically in order to avoid possible liability.

 
 

The fact that the NFL is even close to giving enough ammo for a public figure to potentially have a chance at getting a defamation suit through the courthouse doors shows you how crazy this whole process has been.
 
For whatever reason, the NFL keeps pushing the boundaries on their pronouncements in regards to Brady. The most clear cut example being the arbitration reward as noted.
 
Still Brady has almost no shot at it (which goes to show how screwed up the standard for defamation has gotten for public figures that it is nearly impossible to win one).

 
 

He'd have to show that he didn't cheat, too. And proving a negative like that one is pretty difficult.

For a whole bunch of reasons, it's a very unlikely move. And those reasons are generally pretty beneficial to a society that generally likes people to be able to say what's on their minds. There's a fundamental benefit to society when speech has broad protections, and part of the trade off is that shitty speech sometimes goes without repercussion. It's not so dissimilar conceptually to something like the "beyond a reasonable doubt" protections of criminal law.

 
IANAL, and I know that (at least one of) you guys are - but...aren't we maybe past the doors of the defamation courthouse, and into the lobby?
 
Goodell hasn't asserted that he thinks Brady cheated (even the NFL would have to know that this would be a very weak basis for the suspension). He has stated that Brady cheated by setting up a conspiracy and inducing support, and predicated discipline on that position. Doesn't that shift the burden of proof from Brady to RG?
 
And there are serious damages here. $2M in salary is just the beginning. Cheaters lose endorsements, and Brady has a bunch. The NFL is treating the Pats as repeat offenders, and Spygate was 7 yrs ago. Doesn't this suggest that the NFL believes the stigma from an infraction lasts at least 7 years? So wouldn't Brady be within his rights to multiply his annual endorsement income times seven, as an indication of his downside?
 
Lastly, I think if it did get past the doors and into discovery, the NFL would be incented to settle more than Brady would. There's no way that the owners want the NFL's internal processes and communications available for public purview. And hey, Brady's phone is already "destroyed," so at least some of the potentially-embarrasing stuff that might leak on the other side went down with his Galaxy.
 
This isn't to say that TB12 will file a defamation suit, or even that he should. But is his position really as hopeless as it's being portrayed here?

 

[Moonlight Graham]

For me, this whole thing has killed my Super-Bowl-winning buzz.  When your team wins it all, especially after coming so close and losing the last 2 times they went, it should feel like an extended party.  You get to tease your buddies who are fans of other teams and focus on offseason stories about repeating, dyanasties, best-ever-QBs or whatever.  Instead we have pages and pages of crap about PSI and hidden agendas.  And that is why I am so angry at the NFL.  Yes, they stole draft picks and suspended the best player in Patriots history.  But what is worse to me is that they took a dump in the post-SB party's punch bowl.  For that, I am now much less of an NFL fan.  I will still watch the Pats.  But I now feel much less attached to and interested in the typical NFL preseason excitement.    It feels sleazy to follow along, like watching the Bachelor or something.  

 

[Bleedred]

 
 
Why do you not believe Kraft? We know Vincent told Adrian Peterson one thing and then the NFL went and did something else for punishment. It also seems like the Pats were told suspending the Dorito Dinks would be helpful, and then the NFL used that like a cudgel against the team.
 
I think it also might have been a message given to Kraft through another owner, "Bob, if you accept the penalty, things will probably go easier for Brady." Such a message might have been given at the request of NFL HQ, or it could even have been a fellow owner giving bad advice to Kraft. Perhaps some of the owners might have feared that Kraft would go into full attack on the NFL, and tried to divert him with this suggestion.

 
Because Kraft is too experienced of a business person to actually believe, without an express agreement for leniency from the NFL, that his unilateral decision to accept the penalties would somehow result in better treatment of Brady.  He may have hoped it would have that effect, but there's no way he could have presumed it would.  Even if another owner told him what you said, I still don't think Kraft would ever have believed there would be a quid pro quo.  Or more to the point, if he did, then he's remarkably naive, and I don't believe he's naive.  IMO, Kraft's statement was to mollify his disgruntled fan base that is absolutely furious with this whole abortion of a process.  He realized after the 4 game award upholding the suspension that he had nothing further to lose chastising the NFL and throwing in with the people who are most responsible for his financial success....the fans.   

 

[Bleedred]

 
 
 
 
 
IANAL, and I know that (at least one of) you guys are - but...aren't we maybe past the doors of the defamation courthouse, and into the lobby?
 
Goodell hasn't asserted that he thinks Brady cheated (even the NFL would have to know that this would be a very weak basis for the suspension). He has stated that Brady cheated by setting up a conspiracy and inducing support, and predicated discipline on that position. Doesn't that shift the burden of proof from Brady to RG?
 
And there are serious damages here. $2M in salary is just the beginning. Cheaters lose endorsements, and Brady has a bunch. The NFL is treating the Pats as repeat offenders, and Spygate was 7 yrs ago. Doesn't this suggest that the NFL believes the stigma from an infraction lasts at least 7 years? So wouldn't Brady be within his rights to multiply his annual endorsement income times seven, as an indication of his downside?
 
Lastly, I think if it did get past the doors and into discovery, the NFL would be incented to settle more than Brady would. There's no way that the owners want the NFL's internal processes and communications available for public purview. And hey, Brady's phone is already "destroyed," so at least some of the potentially-embarrasing stuff that might leak on the other side went down with his Galaxy.
 
This isn't to say that TB12 will file a defamation suit, or even that he should. But is his position really as hopeless as it's being portrayed here?

1.  RG said he cheated based on the evidence of the Wells report.  He's not in trouble for that and no, the burden of proof doesn't switch to RG.
 
2.   Has Brady lost any endorsement deals over this?  Not that I'm aware of.  If not, then his damages are limited to the $1.8 million (assuming the 4 games are upheld).   he is not entitled to multiply his damages based on some amorphous idea that he would actually get more endorsement deals if not for the DG bullshit.  Moreover, he's not going to press a claim for intentional or negligent infliction of emotional distress or some other theory that would increase his damages.  Or if he did, he'd lose.
 
3.  The NFL would not be incented to settle a defamation suit because I don't think they fear it.   On the contary, I think the NFL would enjoy defeating that suit soundly.

 

[PedroKsBambino]

He'd have to show that he didn't cheat, too. And proving a negative like that one is pretty difficult.

For a whole bunch of reasons, it's a very unlikely move. And those reasons are generally pretty beneficial to a society that generally likes people to be able to say what's on their minds. There's a fundamental benefit to society when speech has broad protections, and part of the trade off is that shitty speech sometimes goes without repercussion. It's not so dissimilar conceptually to something like the "beyond a reasonable doubt" protections of criminal law.

 
That's not quite right in terms of what Brady would need to show--he'd have to show the statement was knowingly false, or made with reckless disregard for the truth; showing that the statement was true is an affirmative defense for the league (and thus they'd have burden to show it).

 

[RedOctober3829]

That all sounds great, but the problem is that the balls were measured before the game (or approved, or whatever) and found to be fine.  The NFL didn't "let the Pats play with illegal footballs" during the whole first half.  (Put aside whether or not there was anything illegal with the balls.)  The allegation is that after they were approved, they were deflated.  And there's no evidence that the league knew that they were deflated after the pre-game approval and before the INT/halftime. 
 
So the fact that nothing was done in the first half isn't evidence that the league doesn't care about the integrity of the game.  According to the league's line, they acted as soon as there was an allegation that the balls being used were not to spec.

They received a claim during the week that there may have been something fishy done with the Patriots' game balls.  Why wouldn't they take the claim seriously and put procedures in place to ensure the balls did not leave the officials room without supervision from one of the officials?  

 

[edmunddantes]

Also, the timing of that has always seemed hinky.
 
For all  accounts the balls were really only missing for a 100 seconds really. Otherwise, it was the normal walk out to the field.
 
Yet, due to an extra 100 seconds, everyone apparently lost their heads so much that we had keystone cops running around. 
 
People rushed out to the field to see if the balls were out there.
 
They weren't.
 
People rushed to other parts of the stadium to see if they could be found.
 
They weren't.
 
Someone went back to get the back up balls in case they can't locate the game balls.
 
They didn't (balls were found before they came out).
 
Here's my question. 
 
When did Walt first notice the balls were missing?  
 
Right away? Okay. It's not like McNally ran from the room to the bathroom as quick as he could. Some one is sent out to the field to investigate. You have to pass the NFL security dude that McNally was shown walking by. "Hey did you see anyone go by you with the bag of balls?" Or you may even see the back of McNally.
 
Nope. No one asks him otherwise they wouldn't need to be rushing around as he could say "yeah I did. He went that way." And most likely by that time McNally would be walking out of the bathroom after his short break.
 
Maybe you blow past that guy and head to the field to locate the balls. You get out there, and look for them. Say you don't find them right away. You're probably going to spend a little time looking for them. Plus it's going to take you some time to get to the field. So by the time you say "not here and turn around", you will be heading back into the stadium to find the balls. McNally has to be on his way from the bathroom at this point.
 
Also is their some maze pathway of multiple routes to get from the Referee's lockerroom to the field? How do you miss him? I seem to recall the characterization of McNally just comes walking out onto the field is when they re-locate the balls.
 
Or say Walt doesn't notice right away. Say it takes him 3-5 minutes. At this point McNally would be out of the bathroom (and unless their is some crazy maze of pathways), the people sent out to the field would have to pass right by McNally to get out there.
 
It just doesn't make any sense. Just like it doesn't make any sense that there was such a deviation from normal protocol (1st time in 19 years) of the game balls that Walt doesn't just use the back up balls. 
 
The NFL cares so much about the integrity of the game balls that when they go missing for the 1st time in history, there is a collective shrug, and they just throw the balls into the game.
 
I tend to be a cynic, but these inconsistencies make me really want to see the Walt interview notes (wish there was an actual transcript) just to see what happened there. Not to mention Pash's edit to the Wells report.

 

[JayMags71]

This isn't to say that TB12 will file a defamation suit, or even that he should. But is his position really as hopeless as it's being portrayed here?

IANAL either, but - yes. Yes, it is

 

[Harry Hooper]

 
Because Kraft is too experienced of a business person to actually believe, without an express agreement for leniency from the NFL, that his unilateral decision to accept the penalties would somehow result in better treatment of Brady.  He may have hoped it would have that effect, but there's no way he could have presumed it would.  Even if another owner told him what you said, I still don't think Kraft would ever have believed there would be a quid pro quo.  Or more to the point, if he did, then he's remarkably naive, and I don't believe he's naive.  IMO, Kraft's statement was to mollify his disgruntled fan base that is absolutely furious with this whole abortion of a process.  He realized after the 4 game award upholding the suspension that he had nothing further to lose chastising the NFL and throwing in with the people who are most responsible for his financial success....the fans.   

. I am not saying Kraft believed it, I just think it is more likely than not that he was indeed told about a potential quid pro quo.

 

[Myt1]

 
That's not quite right in terms of what Brady would need to show--he'd have to show the statement was knowingly false, or made with reckless disregard for the truth; showing that the statement was true is an affirmative defense for the league (and thus they'd have burden to show it).

Thank you for the correction.

 

[Bleedred]

. I am not saying Kraft believed it, I just think it is more likely than not that he was indeed told about a potential quid pro quo.

Well, if he didn't believe it, then he has no basis for thinking his accepting the penalty would actually have the effect of the NFL reducing Brady's punishment.  Here's what Kraft said:  
 
"I continue to believe and unequivocally support Tom Brady. I first and foremost need to apologize to our fans, because I truly believe what I did in May, given the actual evidence of the situation and the league’s history on discipline matters, would make it much easier for the league to exonerate Tom Brady."
 
In fairness to Kraft, he didn't say he thought they would exonerate Brady, he said he thought accepting the penalty would "make it much easier for the league" to exonerate Brady.  I don't think that's a distinction with a meaningful difference.

 

[Myt1]

1.  RG said he cheated based on the evidence of the Wells report.  He's not in trouble for that and no, the burden of proof doesn't switch to RG.
 
2.   Has Brady lost any endorsement deals over this?  Not that I'm aware of.  If not, then his damages are limited to the $1.8 million (assuming the 4 games are upheld).   he is not entitled to multiply his damages based on some amorphous idea that he would actually get more endorsement deals if not for the DG bullshit.  Moreover, he's not going to press a claim for intentional or negligent infliction of emotional distress or some other theory that would increase his damages.  Or if he did, he'd lose.

Are even those damages attributable to the defamatory statement rather than to the suspension? That is, Goodell could have made the same statement and not suspended or fined Brady, right?

 

[Bleedred]

Are even those damages attributable to the defamatory statement rather than to the suspension? That is, Goodell could have made the same statement and not suspended or fined Brady, right?

Good question and another illustration of the difficulty of the case.  

 

[Myt1]

Yeah, that's the same one. I think people are reading too much into that. He's just lamenting because this couldn't get resolved with a rational conversation.

Well, no. He's also acting like going to court after the arbitration award was handed down was like some unforeseen vexatious litigation. And he and the other owners supported the system that was anything but a rational conversation and supported the commissioner when he used it on others. And court was the easily foreseeable outcome.

No one but you is reading anything into his comments but you.

I mean, the reason he had to take it on the chin is basically because he's denied legal process because of the global deal he signed, and no rational conversation saved him a million bucks and the picks. And the reason Brady has an appeal is because of the lawyers.

His statement is stupid.

 

[drbretto]

Well, if he didn't believe it, then he has no basis for thinking his accepting the penalty would actually have the effect of the NFL reducing Brady's punishment.  Here's what Kraft said:  
 
"I continue to believe and unequivocally support Tom Brady. I first and foremost need to apologize to our fans, because I truly believe what I did in May, given the actual evidence of the situation and the league’s history on discipline matters, would make it much easier for the league to exonerate Tom Brady."
 
In fairness to Kraft, he didn't say he thought they would exonerate Brady, he said he thought accepting the penalty would "make it much easier for the league" to exonerate Brady.  I don't think that's a distinction with a meaningful difference.

 
I agree with you here. I think it was more than Kraft thought that this whole thing was getting out of hand and that the league was playing hardball because emotions were running high and if Kraft fell on his sword and they got what they wanted that they would take their foot off Brady's neck. There was nothing in there that makes me think that there was any quid pro quo, just assumptions on Kraft's end. 

 

[Bleedred]

 
I agree with you here. I think it was more than Kraft thought that this whole thing was getting out of hand and that the league was playing hardball because emotions were running high and if Kraft fell on his sword and they got what they wanted that they would take their foot off Brady's neck. There was nothing in there that makes me think that there was any quid pro quo, just assumptions on Kraft's end.

I don't believe Kraft even assumed that much, but at least it's more plausible to me than the suggestion that there was some sort of quid pro quo.

 

[BusRaker]

ar·bi·tra·tor
ˈärbəˌtrādər/
noun
noun: arbitrator; plural noun: arbitrators

an independent person or body officially appointed to settle a dispute.

 

[nighthob]

1.  RG said he cheated based on the evidence of the Wells report.  He's not in trouble for that and no, the burden of proof doesn't switch to RG.

I was assuming that what they were getting at (and if I'm wrong about this the others will correct me) is that the evidence of the Wells report says something completely different and that Goodell has committed himself to a version of events (in his "arbitration award") that includes fabricated quotes and inferences drawn from things that no one's said which does put him on the reckless disregard for the truth green. I think the NFL is nearing the ground where their only defense is the "But he's a public figure!" one.

 

[simplyeric]

I was assuming that what they were getting at (and if I'm wrong about this the others will correct me) is that the evidence of the Wells report says something completely different and that Goodell has committed himself to a version of events (in his "arbitration award") that includes fabricated quotes and inferences drawn from things that no one's said which does put him on the reckless disregard for the truth green. I think the NFL is nearing the ground where their only defense is the "But he's a public figure!" one.

I've been reading this pretty much all the way through but can you/someone give a brief explanation of the 'public figure' defense?
Is it simply that, as a public figure, you have to expect that people will say all kinds of stuff about you?
Does that really include your employer?

 

[Otis Foster]

I've been reading this pretty much all the way through but can you/someone give a brief explanation of the 'public figure' defense?
Is it simply that, as a public figure, you have to expect that people will say all kinds of stuff about you?
Does that really include your employer?

 
If you're a public figure, you must prove actual malice as opposed to negligence or willfulness.

 

[simplyeric]

 
If you're a public figure, you must prove actual malice as opposed to negligence or willfulness.

Gotcha. Thanks. I've been been reading about this for so long that my eyes go crossed.

 

[nighthob]

The US libel/slander/defamation of character laws were based on the English ones, with the exception that American law recognised truth claims as a valid defense (this is partly why so many celebrities sue newspapers in the UK, the truth defense is stricter and there's no public figure exception). In the US that changed 50 odd years ago with Sullivan v. New York Times, which established a much higher bar for public figures in pursuing these sorts of actions. The malice standard is the tough one to clear, but Goodell has so recklessly disregarded the truth, and deliberately leaked false information so maliciously that this would be an actual fight.

 

[AB in DC]

Kraft's comment is just a less-eloquent version of James Madison's quote: " If men were angels, no government would be necessary."  In other words, the only reason we need law (and by extension lawyers) is that people don't always do the right thing on their own.  
 
Where Kraft went wrong was assuming that his buddy Roger would handle it appropriately from the get-go.

 

[OCST]

Having twice filed defamation suits, I agree with the notion, generally, that the NFL is edging closer to defamation territory.
 
Having twice lost motions to dismiss my defamation suits, I also agree that they're not there yet, especially given Brady's status as a public figure, and the fact that the statement at issue was made in the context of an arbitration proceeding.  The bar is very high.
 
But it's not insurmountable, and the League has to be very careful.
 
My office did bring one defamation suit successfully.  It does not apply directly to Brady's situation, and I don't want to hijack the thread, but some folks might be interested, so I'll spoiler it.
 

Spoiler

 
We had a client who was a NYC licensed master plumber (an insanely difficult credential to get; I had a judge remark once that it was harder to get than a PhD).   He also held fire suppression contractor (sprinkler system) and oil burner licenses.  He had once been issued a summons for failing to follow asbestos abatement procedures in a plumbing job at a NYC public school, and never answered it.  So he had a default on his record.  
 
For reasons unimportant here, the summons had been improper in the first place, but because he had never answered the summons, the City initiated disciplinary proceedings to revoke all three of his licenses, in an administrative forum similar to arbitration.  He settled the proceeding by paying $5000 and doing what was necessary to vacate the default on the old asbestos charges.  In his stipulation of settlement with the City, it was expressly stated that he did NOT admit to any wrongdoing, that the settlement was undertaken to avoid disciplinary proceedings, and that both parties had entered into the settlement willingly, to avoid the uncertainty, risk, and expense of disciplinary proceedings.
 
Shortly afterward, the City put his name in a section of the Dept. of Buildings website where the names of licensees who had been disciplined were listed.  The others listed there included people who had lost licenses as arhcitects, crane operators, etc. for things like bribing city officials.  The notation behind his name showed that he had been the subject of disciplinary proceedings (which he had not) and that he had been fined (which he had not).  They put this on the website three times - once for each of his licenses.  They also listed his corporation as having been fined and disciplined, when the corporation had not been a party to the stipulation, and did not hold any licenses itself (some licenses are held by the corporation, but these three were held by him individually).
 
He immediately began hearing from current and potential clients about it, some of whom said that they were spooked by it.  He was also told by City procurement officials that he might have trouble qualifying for City contracts.  
 
FWIW, the guy had been licensed for 30+ years, no disciplinary record, the firm had been his father's and was 75+ years old, and he employed about 250 people and did about $50M/year in business.
 
We sued the City for defamation.  When you sue a municipality, you sometimes have to file a "notice of claim" first, which puts the city on notice of the impending lawsuit and gives them an opportunity to settle.  The City attorney settled with us by removing the stuff from the website and paying our guy $175,000. 
 
If you have questions about it, ie why TB's case might be different, let's not derail this thread - PM me and I'll answer it.  Again, the parallels with TB are not very strong, but I thought folks might be interested to hear about a successful action.
 

 

[pappymojo]

Also, the timing of that has always seemed hinky.
 
For all  accounts the balls were really only missing for a 100 seconds really. Otherwise, it was the normal walk out to the field.
 
Yet, due to an extra 100 seconds, everyone apparently lost their heads so much that we had keystone cops running around. 
 
People rushed out to the field to see if the balls were out there.
 
They weren't.
 
People rushed to other parts of the stadium to see if they could be found.
 
They weren't.
 
Someone went back to get the back up balls in case they can't locate the game balls.
 
They didn't (balls were found before they came out).
 
Here's my question. 
 
When did Walt first notice the balls were missing?  
 
Right away? Okay. It's not like McNally ran from the room to the bathroom as quick as he could. Some one is sent out to the field to investigate. You have to pass the NFL security dude that McNally was shown walking by. "Hey did you see anyone go by you with the bag of balls?" Or you may even see the back of McNally.
 
Nope. No one asks him otherwise they wouldn't need to be rushing around as he could say "yeah I did. He went that way." And most likely by that time McNally would be walking out of the bathroom after his short break.
 
Maybe you blow past that guy and head to the field to locate the balls. You get out there, and look for them. Say you don't find them right away. You're probably going to spend a little time looking for them. Plus it's going to take you some time to get to the field. So by the time you say "not here and turn around", you will be heading back into the stadium to find the balls. McNally has to be on his way from the bathroom at this point.
 
Also is their some maze pathway of multiple routes to get from the Referee's lockerroom to the field? How do you miss him? I seem to recall the characterization of McNally just comes walking out onto the field is when they re-locate the balls.
 
Or say Walt doesn't notice right away. Say it takes him 3-5 minutes. At this point McNally would be out of the bathroom (and unless their is some crazy maze of pathways), the people sent out to the field would have to pass right by McNally to get out there.
 
It just doesn't make any sense. Just like it doesn't make any sense that there was such a deviation from normal protocol (1st time in 19 years) of the game balls that Walt doesn't just use the back up balls. 
 
The NFL cares so much about the integrity of the game balls that when they go missing for the 1st time in history, there is a collective shrug, and they just throw the balls into the game.
 
I tend to be a cynic, but these inconsistencies make me really want to see the Walt interview notes (wish there was an actual transcript) just to see what happened there. Not to mention Pash's edit to the Wells report.

 
I think that there are two things that likely played into the confusion.  (1) the officiating crews for the playoffs were not the same crews from the regular season (2) the start of the game was delayed due to Seahawks/Packers game running late. 

 

[Reverend]

Lastly, I think if it did get past the doors and into discovery, the NFL would be incented to settle more than Brady would. There's no way that the owners want the NFL's internal processes and communications available for public purview. And hey, Brady's phone is already "destroyed," so at least some of the potentially-embarrasing stuff that might leak on the other side went down with his Galaxy.
 
This isn't to say that TB12 will file a defamation suit, or even that he should. But is his position really as hopeless as it's being portrayed here?

 
The bolded is a really, really important point. The problem is that it runs 180 degrees opposite of how you are presenting it.
 
Were Brady to bring a defamation suit, he would be in an actual legal suit that he instigated where he was responsible for spoilage of evidence. I do not see such a move as strategically sound.

 

[Marciano490]

 
The bolded is a really, really important point. The problem is that it runs 180 degrees opposite of how you are presenting it.
 
Were Brady to bring a defamation suit, he would be in an actual legal suit that he instigated where he was responsible for spoilage of evidence. I do not see such a move as strategically sound.

 
Wouldn't the counterargument be that at the time he destroyed the phone the possibility of bringing a suit was extraordinarily remote because the NFL had not come close to meeting the very high threshold?  There's no spoiliation if litigation isn't reasonably foreseeable.

 

[nighthob]

The thing is the NFL has the actual emails from the phone and the texts they don't have are recorded in logs and recoverable. So I'm not sure anything is lost unless the NFL is claiming that the phone's CPU had vital information that would break the case wide open and the court is stupid enough to believe it (and I think you would need to work hard to find a judge that dumb, and as defendants the NFL wouldn't be the side forum shopping here).

 

[drbretto]

Well, no. He's also acting like going to court after the arbitration award was handed down was like some unforeseen vexatious litigation. And he and the other owners supported the system that was anything but a rational conversation and supported the commissioner when he used it on others. And court was the easily foreseeable outcome.

No one but you is reading anything into his comments but you.

I mean, the reason he had to take it on the chin is basically because he's denied legal process because of the global deal he signed, and no rational conversation saved him a million bucks and the picks. And the reason Brady has an appeal is because of the lawyers.

His statement is stupid.

 
This entire post is exactly what he means by "getting the lawyers out of the room". You missed the spirit of that entire paragraph and you're parsing everything literally. The quote was purely philosophical and is not worth anyone's time to try to dig any deeper. He's not saying they literally shouldn't have lawyers. He's saying he can't have a conversation with Goodell and get this shit resolved because he's got lawyers whispering in his ears.  

 

[NortheasternPJ]

The thing is the NFL has the actual emails from the phone and the texts they don't have are recorded in logs and recoverable. So I'm not sure anything is lost unless the NFL is claiming that the phone's CPU had vital information that would break the case wide open and the court is stupid enough to believe it (and I think you would need to work hard to find a judge that dumb, and as defendants the NFL wouldn't be the side forum shopping here).

Brady's cell phone company reportedly doesn't have the text contents and a phones CPU doesn't store things the memory does.

 

[Investor 11]

Brady's cell phone company reportedly doesn't have the text contents and a phones CPU doesn't store things the memory does.

I think he is referencing the three texts to Jastremski on Feruary 7th. Those would still be retrievable from Jastremski's phone if they really needed them.

 

[NortheasternPJ]

I think he is referencing the three texts to Jastremski on Feruary 7th. Those would still be retrievable from Jastremski's phone if they really needed them.

They had JAstremskis phone and forensic imaged it didn't they? He deleted them from the sounds of it.

 

[Investor 11]

They had JAstremskis phone and forensic imaged it didn't they? He deleted them from the sounds of it.

Going from memory here, but they returned the phone to him on the 6th. The texts took place on the 7th. This became a point in the appeal when the NFL lawyers alluded to the texts but didn't even ask what they contained. Kessler pointed out that Brady was right in front of them and they could ask him about it instead of just attempting to paint them in a negative light.

 

[lithos2003]

They had JAstremskis phone and forensic imaged it didn't they? He deleted them from the sounds of it.

We keep going around in circles on these points...  I know it's a long thread and it's hard to keep up but I think this was answered at least twice before.  The texts referred to were from after the phone was returned to Jastremski.  They didn't bother to ask to see the phone again.

 

[nighthob]

Brady's cell phone company reportedly doesn't have the text contents...

They have the full contact logs of everyone he texted period, and the full contents of all the texts between Brady and team personnel, and the recipients of the texts still have copies.

...a phones CPU doesn't store things the memory does.

I'm aware of that, hence my closing remark.

 

[( . ) ( . ) and (_!_)]

 
This entire post is exactly what he means by "getting the lawyers out of the room". You missed the spirit of that entire paragraph and you're parsing everything literally. The quote was purely philosophical and is not worth anyone's time to try to dig any deeper. He's not saying they literally shouldn't have lawyers. He's saying he can't have a conversation with Goodell and get this shit resolved because he's got lawyers whispering in his ears.  

There were mumblings about Kraft and pash having friction before and during this saga. I think that line is a direct shot at Pash.