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No Winners in the Tom Brady DeflateGate Mess

Those whose default settings point toward Park Avenue described it as the cover-up is worse than the crime. Others whose loyalties are more provincial and perhaps Boston-centric believe NFL commissioner Roger Goodell was playing tyrant when he ruled on Tom Brady’s appeal, upholding a controversial four-game suspension for the All-Pro quarterback’s role in the DeflateGate scandal.

Goodell and Co. cited Brady’s unwillingness to cooperate with Ted Wells’ excessive $5 million investigation, and really harped on the fact that Brady ordered one of his cell phones destroyed, a disingenuous tact from a legal standpoint at least because the signal caller was never compelled to give the phone to investigators anyway.

The ruling revealed that Brady used three cell phones from the spring of 2014 until April 8 of this year, and the only one that couldn’t be recovered had the incriminating evidence on it, a conclusion Brady’s agent, Don Yee, vehemently denied.

“The appeal process was a sham, resulting in the Commissioner rubber-stamping his own decision,” Yee asserted.

“We presented the Commissioner with an unprecedented amount of electronic data, all of which is incontrovertible. I do not think that any private citizen would have agreed to provide anyone with the amount of information that Tom was willing to reveal to the Commissioner. Tom was completely transparent.”

Not transparent enough, however, because destroying one’s phone certainly creates the perception that there is something to hide.

“Rather than simply failing to cooperate, Mr. Brady made a deliberate effort to ensure that investigators would never have access to information that he had been asked to produce,” Goodell wrote. “Put differently, there was an affirmative effort by Mr. Brady to conceal potentially relevant evidence and to undermine the investigation.

“All of this indisputably constitutes conduct detrimental to the integrity of, and public confidence in, the game of professional football.”

Yes “potentially” followed by “indisputably” should have been caught by Goodell’s copy editors but, semantics aside, the real story here is the legal wrangling with federal court looming.

01 May 2015: NFL Commissioner Roger Goodell during round 2 of the 2015. The NFL Draft is being held at the Auditorium Theatre in Chicago, IL

By all accounts the NFL wanted to work out a deal with Brady and its hesitation in ruling on the appeal, which was heard 35 days ago, was a testament to that. Judy Battista, who works for the league as part of NFL Media, reported Tuesday that Goodell offered Brady a one-game penalty but the veteran remained insistent that he would accept a fine but no missed time.

As expected once the harsh penalty was upheld, the NFLPA quickly confirmed that they will fight the punishment with the first step being an injunction that would have Brady on the field for Week 1 and most likely throughout the entire 2015 season as the process plays out.

“The Commissioner’s ruling today did nothing to address the legal deficiencies of due process,” the union said in a statement, while poking holes in the 243-page Wells Report and the league’s subsequent actions in response to it.

The NFLPA claims that the league had no policy for this kind of offense and provided no notice of such policy or potential discipline to the players. The union also argued that the NFL resorted to a nebulous standard of “general awareness” to predicate a legally unjustified punishment; had no procedures in place until two days ago to test air pressure in footballs; and violated the plain meaning of the collective bargaining agreement.

“The fact that the NFL would resort to basing a suspension on a smoke screen of irrelevant text messages instead of admitting that they have all of the phone records they asked for is a new low, even for them, but it does nothing to correct their errors,” the union claimed. “The NFLPA will appeal this outrageous decision on behalf of Tom Brady.”

Outrageous felt tempered when compared to the Patriots’ visceral reaction:

“We are extremely disappointed in today’s ruling by Commissioner Goodell,” the team said in a statement. “We cannot comprehend the league’s position in this matter. Most would agree that the penalties levied originally were excessive and unprecedented, especially in light of the fact that the league has no hard evidence of wrongdoing.

“We continue to unequivocally believe in and support Tom Brady. We also believe that the laws of science continue to underscore the folly of this entire ordeal. Given all of this, it is incomprehensible as to why the league is attempting to destroy the reputation of one of its greatest players and representatives.”

DEC 21 2014: New England Patriots Owner Robert Kraft on the field prior to the game between the New York Jets and the New England Patriots played at MetLife Stadium in East Rutherford,NJ.

Robert Kraft and the Patriots continue to stand behind Tom Brady.

That’s hard ball but it also speaks to the underlying mystery of this whole ordeal. Why did the NFL decide to make such a big deal out of an issue most in the league believe is a relatively minor offense?

Whatever the answer is cooler heads are not about to prevail now as both sides are now entrenched.

In a legally aggressive move the NFL went forum shopping, filing a complaint in federal court in New York, asking for a judge to confirm the decision to uphold Brady’s suspension, a blatant attempt to keep the case out of the more activist Minneapolis court which has been very kind to the players over the years.

To receive an injunction the NFLPA must reach the lofty legal burden of proving the penalty could cause “irreparable harm” to Brady, something that was likely made a little easier by the NFL’s narrative over the destroyed phone, a red herring from a purely legal perspective.

In fact, painting the phone issue in a negative light, while clearly a common-sense reaction, could certainly be perceived as a planned attempt to damage Brady’s standing in the court of public opinion.

And one that was ultimately successful judging by the reaction on social media and some of the reports which didn’t seem to comprehend that the NFL lacks subpoena power and Brady was never required to hand it over had he still possessed it.

All that said, this is ultimately an unwinnable fight for Brady’s camp. Those who point to the recent Adrian Peterson case in which the Vikings’ star running back came out on top back in February fail to realize that hinged on the league’s unilateral implementation of the so-called new domestic-violence policy.

Goodell’s power here, as unyielding and untoward as it may be at times, was collectively bargained and courts are generally loathe to overturn CBAs because a precedent like that would have disastrous implications in many other industries far beyond the NFL.

So what’s the result?

The same one that could have been hammered out before all this nonsense began. Any judge worth his or her salt is going to take notice that Goodell was willing to come down to one-game and decide that’s the proper compromise for the misdemeanor that the NFL turned into a felony.

— You can reach JF McMullen at jmcmullen@phanaticmag.com or on Twitter @jfmcmullen — Also catch John this week on YAHOO! Sports Radio, FOX Sports Radio, ESPN Atlantic City, YSR Indianapolis, ESPN Lexington, Omaha’s The Zone, Mobile’s WNSP, Baltimore’s 105.7 The Fan, 98.5 The Sports Hub in Boston, 92.9 The Game in Atlanta, and ESPN Southwest Florida.



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