Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only

[edmunddantes]

I would like to say I appreciate the transparency. 
 
It was one of the biggest gripes about the old english system that the founding fathers were trying to get away from when they set our system up the way they did.
 
It's sad that in many respects we've slowly backslid to the point in our court** (particularly federal) where this type of transparency is seen as refreshing rather than the norm. As has been said before, sunlight is one of the best disinfectants. Perfect example is the release of the Brady transcript.
 
** Any continuation of this point beyond this comment would have to direct this towards a different part of the forum. I'll just leave it at this level.

 

[DegenerateSoxFan]

Have any fellow lawyers (or perhaps litigants) been involved in a "settlement conference" that was on the record and in open court?   To me, that seems to defeat the purpose. The usual form of "shuttle diplomacy" allows each side to speak freely about the strengths and weaknesses of their case and their drop-dead issues without the other present in a way that open court does not.  
Am I missing something here?

I have, but in a very different context. I used to practice in a jurisdiction where we had open-court settlement conferences in criminal cases. Both sides were given a chance to present their take on the case, although this wasn't always a preferrable option for the defense for reasons I think most people can intuit even if they haven't worked within that kind of system. The judges did "encourage" settlement, but the most effective persuasion tended to occur when the judge said something like "this charge carries a mandatory sentence of x and if you are convicted, I will sentence you to x regardless of whether or not I feel it is appropriate under the circumstances." Hearing from the judges tended to make an impact for clients who had shitty cases, were facing major jail, but were insisting on a trial at which they would almost certainly get fucked hard. They twisted a few prosecutorial arms too, but that tended to occur more in chambers with no court reporter present.

For the most part, these conferences bore little resemblence to what is occurring in this case.

 

[tedseye]

Doesn't Brady have some individual rights under Labor Law beyond what his union bargained for?  For example if my union AFSCME bargained with my employer (the mayor) to suspend me as his own discretion, how does that make it legal?  What other basic rights of mine can my union take away through shitty bargaining even when I vote against it?

See a couple of earlier posts regarding the individual employee's right to a Duty of Fair Representation by the union. If an employer (here, NFL) conspires with the union to disadvantage an individual, he could sue both union and employer. Whether this doctrine extends to a union bargaining away it's members' rights to a fair disciplinary hearing is an unresearched question.

 

[Myt1]

Doesn't Brady have some individual rights under Labor Law beyond what his union bargained for?  For example if my union AFSCME bargained with my employer (the mayor) to suspend me as his own discretion, how does that make it legal?  What other basic rights of mine can my union take away through shitty bargaining even when I vote against it?

Very, very limited ones. Basically, things that are known as "minimum labor standards," like minimum wage, child labor laws, a bunch of safety and environmental regulations, etc.

Absent a CBA and a union, the vast majority of employees are at will and have no grievance procedures at all. So, but for AFSCME, you'd have no procedure in the first place that could even be bargained away. The Mayor could just fire you unless he did so for a very limited number of discrimination reasons (race, gender, religion, etc.).

Please note, public sector unions are creatures of state law and generally aren't governed by the NLRA like the NFLPA is, but I'm generalizing for the sake of tracking your example.

 

[WayBackVazquez]

He knew it would not settle today, and a good amount of work probably was done in the robing room.

I understand that this is how Judge Berman referred to it in his order, and I've heard numerous media members repeat it today, but I had never before heard "robing room" outside of the Supreme Court or some old school British barrister stuff. We have always referred to conferences outside of the courtroom as in the judge's "chambers," and I've confirmed with a couple of clerks here in the CD Cal that there is no separate "robing room," here. So my question to the former clerks here, especially in SDNY, is whether in that court there is such a place, or whether this is just a Senior Judge using some archaic slang for his chambers.

 

[OCST]

I understand that this is how Judge Berman referred to it in his order, and I've heard numerous media members repeat it today, but I had never before heard "robing room" outside of the Supreme Court or some old school British barrister stuff. We have always referred to conferences outside of the courtroom as in the judge's "chambers," and I've confirmed with a couple of clerks here in the CD Cal that there is no separate "robing room," here. So my question to the former clerks here, especially in SDNY, is whether in that court there is such a place, or whether this is just a Senior Judge using some archaic slang for his chambers.

Not a clerk, but I did work for an SDNY judge in the summer between my 1L and 2L years.

In the SDNY main courthouse at 500 Pearl Street, each judge has "chambers" on floor x, which is where the judge has his office, along with the offices of his clerks and office staff. The judge's files are kept here.

On floor y, will be the judge's courtroom, ancillary to which is the robing room, which is a private study to which the judge can retreat. When the judge comes out of the door behind the bench and the court officer calls out "all rise," the judge is coming from the robing room. Also found on that floor is the jury deliberation room for that courtroom, which is often used by the judge and his staff as an overflow when no jury is sitting (which is most of the time). I would guess that the media contingent set up in Berman's jury room. And it wouldn't surprise me at all if Berman held discussions with/among the parties in the robing room, which is actually a suite, containing a private shitter for the judge, an inner sanctum where the judge can sit behind his mahogany desk and pull a flask out of his drawer, and a small conference room with a table and maybe 8 chairs (this is where the judge can confer with counsel mid-trial, and was likely the spot of the activities discussed here).

And yes, there is a secret bat-elevator running from chambers on floor x, and the robing room on floor y, so the judge can materialize from the door behind the bench without having to hobnob with the great unwashed.

 

[WayBackVazquez]

Not a clerk, but I did work for an SDNY judge in the summer between my 1L and 2L years.
In the SDNY main courthouse at 500 Pearl Street, each judge has "chambers" on floor x, which is where the judge has his office, along with the offices of his clerks and office staff. The judge's files are kept here.
On floor y, will be the judge's courtroom, ancillary to which is the robing room, which is a private study to which the judge can retreat. When the judge comes out of the door behind the bench and the court officer calls out "all rise," the judge is coming from the robing room. Also found on that floor is the jury deliberation room for that courtroom, which is often used by the judge and his staff as an overflow when no jury is sitting (which is most of the time). I would guess that the media contingent set up in Berman's jury room. And it wouldn't surprise me at all if Berman held discussions with/among the parties in the robing room, which is actually a suite, containing a private shitter for the judge, an inner sanctum where the judge can sit behind his mahogany desk and pull a flask out of his drawer, and a small conference room with a table and maybe 8 chairs (this is where the judge can confer with counsel mid-trial, and was likely the spot of the activities discussed here).
And yes, there is a secret bat-elevator running from chambers on floor x, and the robing room on floor y, so the judge can materialize from the door behind the bench without having to hobnob with the great unwashed.

Interesting. Thanks.

 

[dcmissle]

Confirming the above. The secret elevator is cool, and thankfully clerks get to go along for the ride.

 

[Myt1]

That's how the old D. Mass in Post Office Square was set up, too, before Moakley opened. Bat elevator and all.

 

[RedOctober3829]

For the lawyers: what do you make of these comments from Stephen Brown?  Does the Brady camp have to be concerned because Judge Berman didn't(at least publicly) challenge the NFL on the specifics of the punishment procedures in the CBA?
 
 

Stephen Brown ‏@PPVSRB  2m2 minutes agoManhattan, NY
Lastly, worth noting what Berman didn’t say. He didn’t challenge NFL on their argument that Goodell’s authority is enshrined in the CBA.

 
 

Stephen Brown ‏@PPVSRB  3m3 minutes agoManhattan, NY
That might be one of the most concerning aspects of the hearing for Patriots fans, really.
 

 

[Leather]

No, because everything Berman said is only the tip of the iceberg.  
 
A) What he *seemed* to imply in the hearing with his line of questioning might not really be where his mind is at; and
B) There are many things he he may have already made up his mind about, or didn't feel the need to discuss, yesterday.  
 
You could just as easily argue the contra and say: "It's very concerning for the NFL that Berman wasn't interested in hearing the basis of their contention that they have unlimited authority under the CBA.  He may have already made up his mind that he finds that argument unpersuasive!"
 
Comments like that rest on the belief that Berman is being completely candid and showing his hand.  He wasn't.   We have no idea what his strategy is at this point, or what he really thinks of the case.  

 

[joe dokes]

For the lawyers: what do you make of these comments from Stephen Brown?  Does the Brady camp have to be concerned because Judge Berman didn't(at least publicly) challenge the NFL on the specifics of the punishment procedures in the CBA?
 

 
At the outset, I take almost nothing from what the Judge did publicly in terms of how it related to a potential substantive ruling someday.
 
But there's a just-as-likely neutral explanation for Berman's lack of questioning on the issue -- he has no questions about it. Sometimes, as they often remind litigators, judges ask questions because they really want to know the answer. That's why "answer the question" is Rule #1 for lawyers arguing to judges, either at the trial or appellate level.  It could be that both sides explained their respective positions clearly enough on paper for him not to need to ask any further.
 
 
 
Edit: drleather is also right.....one could just as easily interpret it as being *not* in the NFL's favor.
 
(drleather to Judge:  "you're with me, Berman")

 

[rodderick]

No, because everything Berman said is only the tip of the iceberg.  
 
A) What he *seemed* to imply in the hearing with his line of questioning might not really be where his mind is at; and
B) There are many things he he may have already made up his mind about, or didn't feel the need to discuss, yesterday.  
 
You could just as easily argue the contra and say: "It's very concerning for the NFL that Berman wasn't interested in hearing the basis of their contention that they have unlimited authority under the CBA.  He may have already made up his mind that he finds that argument unpersuasive!"
 
Comments like that rest on the belief that Berman is being completely candid and showing his hand.  He wasn't.   We have no idea what his strategy is at this point, or what he really thinks of the case.  

 
We also have to keep in mind that Goodell's authority under the CBA is the crux of the issue here. A judge that wants both parties to ease up on the rhetoric and settle likely isn't going to give them anything that could be construed as a definitive statement on the main matter at hand. If he leaned too much one way or the other in his questioning regarding Goodell's authority, he ran the risk of one of the parties feeling like they were in a position of power and remaining steadfast in their refusal to negotiate. I feel that's the reason why Berman was inquiring mostly about the facts surrounding the case, and not the procedural issues themselves (which is where this will be resolved).

 

[Steve Dillard]

I think the judge did challenge the article 46 application. He asked - indirectly- how inflation impacted the competitive aspect of the game. The only reason for that observation seems to be that article 46 applies only if an offense undermines public confidence or is "conduct detrimental to integrity".

Even if an offense existed, the jurisdictional predicate for article 46 could be missing.

 

[bankshot1]

Can we infer from the NFL's reported continued hard line stance that they would prefer to lose in Berman's court,  and hope to win in appellate court, rather than look "weak" to the owners and negotiate a reduced penalty?
 
From the Judge Berman's perspective how does he assess the NFL's reported demand that Brady accept guilt/the findings of the Wells Report?
 
Does the damage already done to Brady's reputation filter down into any future ruling? ie. even if Brady is wholly innocent, his "good name"' may never be wholly restored. Could that penalty already paid, be factored into any future penalty assigned for non-cooperation?

 

[PedroKsBambino]

Can we infer from the NFL's reported continued hard line stance that they would prefer to lose in Berman's court,  and hope to win in appellate court, rather than look "weak" to the owners and negotiate a reduced penalty?
 
From the Judge Berman's perspective how does he assess the NFL's reported demand that Brady accept guilt/the findings of the Wells Report?
 
Does the damage already done to Brady's reputation filter down into any future ruling? ie. even if Brady is wholly innocent, his "good name"' may never be wholly restored. Could that penalty already paid, be factored into any future penalty assigned for non-cooperation?

 
Seems to me the most likely scenario (and we simply can't know with a lot of confidence) is that Berman's response to the NFL's settlement position was to rip them up publicly on the weakness of their evidence.    If Brady had taken an equally preposterous settlement position he'd have asked different questions and likely focused more on Brady.   So, to the limited degree we can guess, I think we've already seen his response to the NFL's position.
 
I also suspect he's pressuring Brady as well, though no real visibility into how or how hard.
 
dcmissile has been making the point that Berman's client is 'settlement' and I think what we've seen publicly is wholly consistent with that.

 

[Bleedred]

 
Seems to me the most likely scenario (and we simply can't know with a lot of confidence) is that Berman's response to the NFL's settlement position was to rip them up publicly on the weakness of their evidence.    If Brady had taken an equally preposterous settlement position he'd have asked different questions and likely focused more on Brady.   So, to the limited degree we can guess, I think we've already seen his response to the NFL's position.
 
I also suspect he's pressuring Brady as well, though no real visibility into how or how hard.
 
dcmissile has been making the point that Berman's client is 'settlement' and I think what we've seen publicly is wholly consistent with that.

 
 
Who are the lawyers in this thread and their areas of practice?:
 
dcmissile
waybackvazquez
myt1
marcsullivan
joedokes
oilcanshottupac
theo (bankruptcy)
bleedred (corporate/real estate)
 
I know I've missed a ton, but maybe the first page of the post can be amended to include the SOSH list of lawyers and their areas of practice?

 

[Red Right Ankle]

Also where the live and the nearest wall they can be put up against? You know, for when the revolution comes?

 

[nattysez]

Gabe Feldman is tweeting quotes from the NFLPA's brief filed today.  It would appear the NFLPA did not take S.S.H., LLP's advice about avoidance of adjectives in its briefing.  That could be a sign of desperation and/or frustration.  If you thought you had the better of the case, I don't think you'd be over-the-top in your responsive pleadings.

 

[PedroKsBambino]

I think it depends on what you feel the judge is still evaluating.   These tweets make the case for bias (primarily) and procedural unfairness.   That could be because they feel the judge is already there on other issues, or it could be because they feel he's inclined to defer to the arbitrator and these are levers to get around that.
 
More than anything, I think it's a brief for the public--I'd imagine they've made these points, and the judge has already seen them, in private.  So deciding to do that is interesting.

 

[SamK]

Also where the live and the nearest wall they can be put up against? You know, for when the revolution comes?

 
Yep. It might be a good time for dcmissle, et al. to get new cell phones. In the first half of this year I studied Boyle's Law at this site. Now I study Boil's law here. I remain grateful for everyone's expertise and generosity. But, I am more comfortable gleaning any useful personal background information from my own careful reading of individuals' posts. 

 

[dcmissle]

Gabe Feldman is tweeting quotes from the NFLPA's brief filed today.  It would appear the NFLPA did not take S.S.H., LLP's advice about avoidance of adjectives in its briefing.  That could be a sign of desperation and/or frustration.  If you thought you had the better of the case, I don't think you'd be over-the-top in your responsive pleadings.

From the snippets I have seen in a companion thread, it is fair advocacy. Yeah, the NFL in fact did these things

 

[AB in DC]

Reading the NFLPA brief now.  Looks like the same terrain they've already covered.  Does anyone here see anything new?

 

[nattysez]

From the snippets I have seen in a companion thread, it is fair advocacy. Yeah, the NFL in fact did these things

 
The amount of bold and italics used in this brief seems excessive in light of the fact that they know they've got the Court's attention.  In my experience, you save playing with the fonts for when you think the judge and/or his clerk is likely going to skim the brief.  But reasonable minds may differ on this, and if this is just Kessler's briefing style, it may mean nothing.

 

[dcmissle]

 
The amount of bold and italics used in this brief seems excessive in light of the fact that they know they've got the Court's attention.  In my experience, you save playing with the fonts for when you think the judge and/or his clerk is likely going to skim the brief.  But reasonable minds may differ on this, and if this is just Kessler's briefing style, it may mean nothing.

I was just reading the snippets. I use these very sparingly, but everyone has his own style. And there may be a dynamic he senses with the judge he is playing to. Or perhaps he is writing for the press.

 

[Joshv02]

It's his style.
I hate it personally. I like bullet points and short paragraphs. I like repeating themes not hammering them.

I have a trial attorney who I would not trust to teach grammar to my preschooler. But he is a fantastic trial attorney and I've met few judges who don't love him.

He also never met an adverb he didn't love. Shrug.

 

[Reverend]

I was just reading the snippets. I use these very sparingly, but everyone has his own style. And there may be a dynamic he senses with the judge he is playing to. Or perhaps he is writing for the press.

 
This is written, rhetorically speaking, basically to be read aloud. Fascinating.

 

[RedOctober3829]

No brief from the NFL yet.  Hope filing early doesn't come back to bite the PA in the ass as the NFL could be revising their brief to answer back at some of these claims.

 

[Eddie Jurak]

Does this one matter:
 

[SIZE=12pt]The NFLPA’s position is thus not that Goodell “should have reached different findings of fact” (NFL Mot. 9), but that the [/SIZE][SIZE=12pt]League’s [/SIZE][SIZE=12pt]testimony confirms there was no fair and consistent basis to impose discipline based on the halftime data. [/SIZE]
 

 

[Ed Hillel]

I know I made this prediction in the other thread, but I really think 1A is the big winner for Brady. That specifically bargained for rule on equipment violations actually utilizes the words "affect the integrity of the competiton and give a team an unfair advantage." The rule already mentions integrity! He can't then decide to punish under the umbrella of "integrity of the game" when that aspect is specifically covered in another rule that is a direct hit on the violation itself. I think the bias argument is strong, as well.

In fact, thinking back, Berman's question about the alleged deflation having only happened one game may have been in reference to the "first time offense" language in this rule.

 

[jimbobim]

No brief from the NFL yet.  Hope filing early doesn't come back to bite the PA in the ass as the NFL could be revising their brief to answer back at some of these claims.

These aren't just "claims". Similar to Rice the NFL's shifting justification violates some explicit player protections most notably notice and to a lesser extent precedent with the "fine". The NFL's position is everything Roger does is absolutely protected by Article 46. This dismisses losing in Peterson. They also dismiss Rice and it's not perfectly applicable because the judge had formally been decided upon to be Independent Arbitrator. 
 
Though Kessler mines Rice here...
 
Daniel Wallach ‏@WALLACHLEGAL  11m11 minutes ago
"This is Labor Law 101 & why Goodell testified in Rice, w/o qualification, that under CBA, NFL is 'required to give proper notification'"

 

[Ed Hillel]

No brief from the NFL yet.  Hope filing early doesn't come back to bite the PA in the ass as the NFL could be revising their brief to answer back at some of these claims.

Shouldn't be a big deal. The NFL can't change the facts.

 

[jmcc5400]

Strong brief. It gives Berman everything he needs. If any case cried out for bold and italics, this one does.

 

[bowiac]

Substantive-ish stuff I see:
 
1) There's nothing about the law of the shop from Peterson/Rice/Hardy that makes them limited to domestic violence. Rather, that's just the CBA, which requires notice. (This has always struck me as a particularly inane point by the NFL: players count on having notice prior to discipline for domestic violence, but not for anything else? Huh?)
 
2) Overuse of Italics in the heading at the bottom of page 3. There is no reason for "Ignores" to be italicized.
 
3) They point out that the NFL's reading of the Contract Detrimental language would render the Player Policies a nullity. This is a key point it seems to me, and if anything should have been fleshed out more. There's no reason to have any discipline policies if Goodell can just snag any and all behavior under the Conduct Detrimental catchall.
 
4) They call out the NFL for conflating the Award (affirming the suspension) with Vincent's initial suspension.
 
5) Section I.D is concerning.
 
6) Any brief that points out, even obliquely, that Stephen A. Smith is a hack, is a good one.

 

[Eddie Jurak]

Substantive-ish stuff I see:
 
 
5) Section I.D is concerning.  

Concerning for whom?

 

[jimbobim]

Daniel Wallach ‏@WALLACHLEGAL  9m9 minutes ago
"A specifically applicable disciplinary policy controls over general provision that certain behavior might be deemed “conduct detrimental"

 

[Gash Prex]

I did not find that particularly strident or over the top - looked like effective brief material to me.  This is a direct response to their brief and therefore will be more adversarial by nature.  

 

[bowiac]

Concerning for whom?

For Brady. It's the weakest section from both a common sense point of view, and the law. The argument is that Brady had no notice that he could be suspended for obstructing an investigation. Okay, yeah, sorta. I know Wells didn't warn him, but even Berman at the settlement conference was asking about this: why destroy the phone? Saying Brady had an idiot for an agent isn't the most satisfactory answer. It's probably true, but Brady can afford whatever lawyer he wants. Most people know they shouldn't destroy evidence - you shouldn't really the investigator to spell it out. That's the common sense part. From a legal view, while they did as good a job as possible of dealing with Connecticut Light, it wasn't quite the slam dunk I was hoping for. 

 

[BroodsSexton]

No brief from the NFL yet.  Hope filing early doesn't come back to bite the PA in the ass as the NFL could be revising their brief to answer back at some of these claims.

FWIW, particularly if I have a strong argument, I love to file early. Mess with opposing counsel's head and force them to think about reworking their brief (and making it obvious they're seeking an unfair advantage) or just torture them knowing that they can't do anything about it. As a young lawyer responsible for drafting briefs it is a total mindfuck when a brief comes in early.

 

[AB in DC]

The bigger flaw with 1D  is that the Goodell Award doesn't say that he's being suspended because of the phone.  NFL is just using it as adverse inference on the underlying charge.  So it feels like a red herring.

 

[bowiac]

Here's the NFL's brief.

 

[djbayko]

I did not find that particularly strident or over the top - looked like effective brief material to me.  This is a direct response to their brief and therefore will be more adversarial by nature.  

I thought it was a little apoplectic myself.

 

[PedroKsBambino]

NFLPA brief 15 pages; NFL brief effectively 7.

 

[jmcc5400]

Eight pages. Not much to say.

 

[jimbobim]

Here's the NFL's brief.

Haven't finished yet but trying to obliquely characterize all NFL NFLPA disputes as governed by the "best interests" rationale given to baseball in a ant-trust exception case is a stretch.  
 
citing Charles O. Finley & Co. v. Kuhn, 569 F.2d527 (7th Cir. 1978), for the proposition that the baseball commissioner’s “decision that certain  actions were in the best interests of baseball should stand where he acted in good faith, whether  or not the court believed he was right or wrong in making this decision”).

 

[Reverend]

NFLPA brief 15 pages; NFL brief effectively 7.

 
"I'll take Things Not to Say to a Federal Judge for a thousand, Alex."
 

Supreme Court precedent precludes a retrial of Tom Brady’s disciplinary appeal in this Court. But that is precisely what the Union seeks. At its core, the NFLPA’s motion merely disputes whether the discipline imposed on Brady is warranted under the CBA and the facts presented at the appeal hearing before the Commissioner. The CBA provides that these questions were for the Commissioner to answer. Under the law, his judgment cannot be disturbed.
 

 

[Joe D Reid]

Other people are more knowledgeable on the law here. But I used to teach legal writing, and thought that there was some interesting stuff to be gleaned just from the tone and the story being told. (To be fair, some other folks above have touched on what I'm about to say, but I wanted to call it out.)
 
The first rule of legal writing is to tailor the content and tone of your writing to your audience. You don't explain a legal concept to a client the same way that you would explain it to a judge; you don't advocate when you should explain. 
 
When I look at that brief, I see a tone that is considerably more breathless than I would suggest for a response brief in federal court. And I was all set to come here and bemoan all the italics and the bolding and the stridency when I remembered something important: Jeffrey Kessler is a better lawyer than I am. He is not stupid, and he clearly knows how to write a brief. 
 
My conclusion, then, is that he did in fact tailor this brief to his audience. It's just that his audience is the press and general public.
 
I mentioned this in the other thread, but I think the change in emphasis in the PA's "story" from "the NFL is incompetent" to "the NFL is malicious" runs in tandem with the change in tone. The whole thing feels like they are playing to the cheap seats on this one. I have no idea whether/how this affects their chances with Berman, but I thought it was really interesting.
 
EDIT: I should be more clear that I'm mostly referring to the preliminary statement and Point IV here. There are also 8 pages or so of perfectly normal advocacy sandwiched between the breathless stuff.

 

[jimbobim]

The NFL's flawed decision and more importantly Goodell's willful ignorance of being scolded by Tagliabue is perfectly seen in a footnote. 
9
The Award further purports to “distinguish” Bounty because the“decision itself states that it ‘should not be considered precedent for whether similar behavior in the future merits player suspensions or fines.’” NFL Mot. 7 (citing Award 14-15 n.14). However, the quoted language concerned the alleged bounty program—not non-cooperation. Moreover, here, the Award sustained a four-game suspension whereas no suspension had ever previously been sustained for such conduct. As Bounty holds: such “a sharp change in sanctions or discipline can often be seen as arbitrary and as an impediment rather than an instrument of change.” Bounty 6.

 

[TheRealness]

I have never liked the idea of starting off an argument with "the facts don't matter, they are trying to re-litigate!", followed by a lengthy section where I argue the facts matter and support my case.


Pick one. Riding both is a sign of weakness, IMO.

 

[Bleedred]

For Brady. It's the weakest section from both a common sense point of view, and the law. The argument is that Brady had no notice that he could be suspended for obstructing an investigation. Okay, yeah, sorta. I know Wells didn't warn him, but even Berman at the settlement conference was asking about this: why destroy the phone? Saying Brady had an idiot for an agent isn't the most satisfactory answer. It's probably true, but Brady can afford whatever lawyer he wants. Most people know they shouldn't destroy evidence - you shouldn't really the investigator to spell it out. That's the common sense part. From a legal view, while they did as good a job as possible of dealing with Connecticut Light, it wasn't quite the slam dunk I was hoping for. 

I agree with you that this is probably the weakest part of the brief, but as kessler noted in the settlement conference, he conceded it could have been done better (i.e. not destroyed).  Moreover, he also notes that it was remedied in the arbitration hearing but that the NFL couldn't be bothered to actually search through the records because it was "impractical."  Finally, the other reason given for vacatur (no notice;  unfair proceeding;  partial arbiter) are very strong and overwhelm the weakness of this one prong IMO.   (I've yet to read the NFL response)