More On Brady Evidence And Discipline – Careful What You Wish For, And If You Are A Player, Don’t Email, Text Or Leave Messages

The following is a link to the NFL statement on the Patriot’s violations (from Click Here. In relevant part for the purpose of this blog post, the statement states:

“‘Here, there are several factors that merit strong consideration in assessing discipline. The first is the club’s prior record. In 2007 the club and several individuals were sanctioned for videotaping signals of opposing defensive coaches in violation of the Constitution and Bylaws. Under the Integrity of the Game Policy, this prior violation of competitive rules was properly considered in determining the discipline in this case. (Tate comment: why is a 2007 violation, especially on an entirely different issue, so important to this alleged 2015 violation 8 years later – that is like punishing the team twice for the 2007 violation, which also is a violation that is totally unrelated. The NFL would have been better advised to not include the 2007 violation in its current evaluation).

“Another important consideration identified in the Policy is ‘the extent to which the club and relevant individuals cooperated with the investigation.’ The Wells report identifies two significant failures in this respect. The first involves the refusal by the club’s attorneys to make Mr. McNally available for an additional interview, despite numerous requests by Mr. Wells and a cautionary note in writing of the club’s obligation to cooperate in the investigation. The second was the failure of Tom Brady to produce any electronic evidence (emails, texts, etc.), despite being offered extraordinary safeguards by the investigators to protect unrelated personal information. Although we do not hold the club directly responsible for Mr. Brady’s refusal to cooperate, it remains significant that the quarterback of the team failed to cooperate fully with the investigation.

“Finally, it is significant that key witnesses — Mr. Brady, Mr. Jastremski, and Mr. McNally — were not fully candid during the investigation.

“In accepting the findings of the report, we note that the report identified no evidence of wrongdoing or knowledge of wrongdoing on the part of any member of the coaching staff, including Head Coach Bill Belichick, or by any Patriots‘ staff member other than Mr. Jastremski and Mr. McNally, including head equipment manager Dave Schoenfeld. Similarly, the Wells report is clear that Patriots ownership and executives did not participate in any way in the misconduct, or have knowledge of the misconduct.

“Nonetheless, it remains a fundamental principle that the club is responsible for the actions of club employees. This principle has been applied to many prior cases. Thus, while no discipline should or will be imposed personally on any owner or executive at the Patriots, discipline is appropriately imposed on the club.”

From Troy Vincent’s letter to Tom Brady:

“With respect to your particular involvement, the report established that there is substantial and credible evidence to conclude you were at least generally aware of the actions of the Patriots‘ employees involved in the deflation of the footballs and that it was unlikely that their actions were done without your knowledge. Moreover, the report documents your failure to cooperate fully and candidly with the investigation, including by refusing to produce any relevant electronic evidence (emails, texts, etc.), despite being offered extraordinary safeguards by the investigators to protect unrelated personal information, and by providing testimony that the report concludes was not plausible and contradicted by other evidence.

“Your actions as set forth in the report clearly constitute conduct detrimental to the integrity of and public confidence in the game of professional football. The integrity of the game is of paramount importance to everyone in our league, and requires unshakable commitment to fairness and compliance with the playing rules. Each player, no matter how accomplished and otherwise respected, has an obligation to comply with the rules and must be held accountable for his actions when those rules are violated and the public’s confidence in the game is called into question.'”


Tate comments.

However, as I have previously blogged on May 7, with respect to Tom Brady the Wells Report concluded:  “We nevertheless believe, based on the totality of the evidence, that it is more probable than not that Brady was at least generally aware of the inappropriate activities of McNally and Jastremski,” and doesn’t that set precedence for discipline of other players and teams in the future.  The statement against Brady is considerably less certain, and it contains two standards: “more probable than not” and “that Brady was at least generally aware of inappropriate activities.”  I understand the first standard.  I don’t see that the second standard has a definition, at least not at law, and I doubt under the Collective Bargaining Agreement. It appears that the standard stated is something like “it is more probable than not that it is more probable than not.” You can be certain that the Wells investigation was very detailed and that Wells thought long and hard about the wording that was used in the Wells Report – if he could have straightforward said that more probable than not Brady was involved in a directive that the footballs be deflated, the Report would have so stated.  Whereas some of the other teams or players might want Brady disciplined, I would suggest that considering precedence for allegations of wrongdoing by other players and teams in the future, they might want to reconsider their wishes in this situation and based on the standards being used.

I also note that the NFL statement on the Patriot’s violations does not appear to mirror the Wells Report wording on findings against Mr. Brady. Further, I would suggest that the vague and broad statement about Brady being “generally aware of the inappropriate activities of McNally and Jastremski” says nothing about when Mr. Brady had that knowledge, i.e., before, during or after the game, or what his alleged “general awareness” was.

Finally, I have previously noted that if Mr. Brady did not totally cooperate in the investigation, i.e., if he did not produce requested phone, text or email messages, under the Collective Bargaining Agreement there might be evidence to discipline on that particular violation. However, the NFL statement on the Patriot’s violations does not contain sufficient detail or information about which phone, text or email messages were requested, or the protections that the NFL offered to Mr. Brady. Didn’t the NFL also demand that other people produce phone, text or email messages that they received from Mr. Brady about the football inflation issue, and didn’t the NFL receive those communications?  Further, as it might be possible to claim lack of cooperation in most incidents, this could be viewed as a catch-all violation unless it is supported with substantial specific detail, evidence and prejudice to the NFL.

I would also suggest that in future incidents players will have more in mind not to leave phone messages, or to text or email as those actions could be used against them.  At least in this circumstance there is no evidence that phone messages, texts or emails were deleted after the issue or possible dispute arose – there is or can be a requirement to preserve evidence.

That’s all for now.

Dave Tate (San Francisco/California)

My other blog,, trust, estate, conservatorship and elder abuse litigation.