7/29: Marcia outraged: 'I did nothing wrong'

[swiper]

A few bullet points:

-In a civil proceeding, they could, and would subpoena phone records...and would make a discovery request. It would far more broad than what the NFL investigator made, which was one of the most narrowly tailored requests you will find.

-But in a civil proceeding...you don't have a right to seize a phone either...you can ask for records. But in a civil proceeding, like the nfl investigtation scheme, if they aren't produced when requested, sanctions are possible.

-Here...the request was made ONLY for a limited set of records, directly relevant to the investigation at hand.

-Here...the player was under an affirmative duty, via the NFL Code of Conduct, to provide honest answers to questions and all documents requested.

-Certain protections given in a criminal or civil matter don't apply in an employer/employee setting, especially when there is an express "duty to cooperate" clause as a part of the employment agreement(s). Many employees, for instance, might try to plead the 5th, and that might work as far as a criminal investigation or often in a civil suit, but it doesn't work too well against an employer. "Talk or walk" is the common catchphrase many times.

I don't know if people realize how much effect the duty to cooperate clause has on this matter.

And I think you would agree that wrong-doers are often afraid that this wider request for information that will be requested opens him up for being charged for any other wrongs they may come across in looking at that information.

[CommissarSpartacus]

http://www.washingtonpost.com/sports...m_sports_pop_b

DeflateGate’s real issue: Due process

By Sally Jenkins Columnist July 30

About that exploding cellphone. You know, the one NFL Commissioner Roger Goodell seems to think belonged to Machine Gun Kelly and was used in the kidnapping of the Lindbergh baby, as well as the Krupp diamond theft. The one that Ted Wells said he didn’t want or need to complete his investigation into DeflateGate. The one the NFL’s own investigator said wasn’t necessary to the case.

That one.

There are two separate issues here. One is whether Brady and the Patriots knowingly softened game balls in the AFC championship game — and it seems clear from the league’s own recent rule changes that it doesn’t have enough evidence one way or the other on that, given its sloppy procedures and the fact that it treated ball inflation as not worth monitoring. The second, larger matter is that of the league’s basic due process.

Watching this case closely and curiously is John Dowd, the special counsel who conducted Major League Baseball’s investigation into Pete Rose and got him banned from the game. As a neutral observer, Dowd finds the abuse of process in DeflateGate to be the real scandal. “I still don’t know what this is about. . . . Like ‘Seinfeld,’ this is about nothing,” he said in an e-mail. He called Goodell’s ruling against Brady based on a sudden issue over Brady’s cellphone “an ambush” and added, “The entire NFL disciplinary process lacks integrity and fairness.”

...more...

[Strongman]

And I think you would agree that wrong-doers are often afraid that this wider request for information that will be requested opens him up for being charged for any other wrongs they may come across in looking at that information.

I think t his is very likely. There was probably an incriminating text that indicates it wasn't a one time phenomenon and spent back for years.

[sudzy]

Just for argument let's say he did it. And the moment it can out, Brady said, " I told the equipment guys like my football a little under inflated and to push the rule as much as they could. If the rule was broken, I'm sorry, that's on me. Belichick and the Patriots had no knowledge of this." What would have happened? It would have been the talk of Super Bowl week (it was anyways) and Brady would have been fined. End of it. The NFL probably wouldn't have investigated something that someone admitted to. Probably no suspensions, definitely no loss of draft choices and no team fine. If he did do it, he's cost his team a ton, putting himself before the Patriots

[DynaPaul]

http://www.washingtonpost.com/sports...m_sports_pop_b

DeflateGate’s real issue: Due process

Give it up, he's guilty. You're not going to convince anyone on this board that he isn't.

[IlluminatusUIUC]

A couple of questions...Is there any argument for relevance here? What does Brady's phone records exactly prove, especially with the records they already have from McNally and the other guy? This case isn't just about his phone, it's about a much broader issue. Other than that argument I can't think of one that Brady's camp would make to block this discovery. You?

It's possible there were messages Brady tried to send that weren't delivered, those would still appear in his outgoing message box but not in the equipment managers'. Or there could have been messages that the managers deleted from their phone that Brady did not. It's also possible there were messages to other people.

Brady's lawyers also supposedly produced a letter from his cell phone provider claiming that the content of those messages were lost. Which makes sense, while all providers save text message metadata none of them save the content much longer then it takes to deliver it. So Brady's phone was the last copy of that information.

In any event, both sides in the NY case said they weren't going to seek additional evidence so sadly we won't get the spectacle of a discovery fight or either man under oath.

[Ingtar33]

http://www.washingtonpost.com/sports...m_sports_pop_b

He called Goodell’s ruling against Brady based on a sudden issue over Brady’s cellphone “an ambush”

It wasn't an ambush unless Brady's lawyers are worthless it was 100% predictable. I made a post on this issue a couple of months ago that brady not turning over his cell phone will ultimately be the reason the league HAS to suspend him. My point at the time (restated and rewritten because i can't be bothered to look it up) was this-

setting aside the footballs, their level of inflation or even if there was an advantage to it, there was a seemingly credible charge of cheating brought against Brady and the Pats. Cheating, fixing, tampering are the REASON OF EXISTENCE of a commissioner of a major sports league. it was the whitesox scandal which created the very first commissioner for a major sports league, and it's shadow has lead all other major sports league to create the commission position. So we have a charge of cheating, and the league has to take it seriously. It investigates, and in the process of the investigation, they're lead to the player most likely to have orchestrated the situation, Brady. however that player refused to cooperate fully with the investigation.

Now there are several issues at play at this point.

1) the league's investigator recommended 4 games by comparing the standard applied to steroid users. The leagues own language on steroid use states clearly that the league did not need to prove a "competitive advantage" was gained only that the attempt to gain the advantage had occurred.
2) Unlike with steroids there is no chemical, objective scientific test that can be given to the footballs to determent if they had been intentionally deflated. We can only have an investigation. That investigation made a strong case that Brady intentionally had them deflated.
3) Brady refused to cooperate with the investigation fully, by denying the league access to his cell phone.

so Goodel was in between a rock and a hard place.

If he reduced or waved the suspension, even though the suspected player had refused to cooperate fully (and in fact denied the league access to or destroyed the very evidence which might exonerate or condemn him), he would have set the precedent that it was ok to "cheat" as long as you destroyed the evidence or at least withhold the evidence from a league investigation into whether a player had attempted to gain a competitive advantage or not. In short if a player is taking PEDs, he could deny the league access to blood or urine tests, if a player was fixing games he could deny the league access to his phone or home or email, if a player was using stickum he could deny the ref the chance to examine his hands all without repercussions.

BECAUSE the suspension was based upon the concept of cheating in an attempt to gain a competitive advantage unless brady had turned over the cell phone there was ZERO way for the league to let him off without a time machine. And his lawers should have seen that coming as well. Remember when the league was negotiating with brady for a reduction, do you recall what condition prevented an agreement from being made? they wanted the phone or access to the phone's data. without it no deal WAVING THE SUSPENSION COMPLETELY could be made. the phone was always at the heart of this because it went into the very nature of a major sports league and the very existence of a sports commissioner. Goodell was a good lawyer for the league, believe me, this is the whole sticking point. once Brady was suspended on the grounds he potentially attempted to gain a competitive advantage there was zero chance of a different outcome without the phone or its data... I suspect this will stand up in court for the same reasons i outlined above.

Just for argument let's say he did it. And the moment it can out, Brady said, " I told the equipment guys like my football a little under inflated and to push the rule as much as they could. If the rule was broken, I'm sorry, that's on me. Belichick and the Patriots had no knowledge of this." What would have happened? It would have been the talk of Super Bowl week (it was anyways) and Brady would have been fined. End of it. The NFL probably wouldn't have investigated something that someone admitted to. Probably no suspensions, definitely no loss of draft choices and no team fine. If he did do it, he's cost his team a ton, putting himself before the Patriots

It would depend on Wells. For all we know Wells might have not suggested a suspension; remember, unlike with PEDs there has to be an objective investigation, and baring a smoking gun, this "credible" alternative defense could have been credible enough to prevent the suspension. However, had wells suggested the suspension for the same reasons he ultimately did (which this argument does not refute or invalidate) we'd be at the same point today as we are now. Only difference is public opinion would be more sided with brady.

[starrymessenger]

Sally Jenkins?
isnt she the dope who remained solidly in Lance Armstrong's corner until the roof caved in on her?

[sudzy]

It would depend on Wells. For all we know Wells might have not suggested a suspension; remember, unlike with PEDs there has to be an objective investigation, and baring a smoking gun, this "credible" alternative defense could have been credible enough to prevent the suspension. However, had wells suggested the suspension for the same reasons he ultimately did (which this argument does not refute or invalidate) we'd be at the same point today as we are now. Only difference is public opinion would be more sided with brady.

I am thinking that if Brady admitted he did it from the get go, the NFL doesn't bring in Ted Wells. Why spend a lot of time investigating something someone has already confessed to? Now the question is, would the NFL have suspended him? Maybe a game, at most. I think it (most likely) would have been a fine.

[JoeMama]

[cookie G]

A couple of questions...Is there any argument for relevance here? What does Brady's phone records exactly prove, especially with the records they already have from McNally and the other guy? This case isn't just about his phone, it's about a much broader issue. Other than that argument I can't think of one that Brady's camp would make to block this discovery. You?

Sorry, busy weekend, just saw this.

As to whether the phone records are relevant, especially at the investigation phase, or in a civil case, the discovery phase. He was really asked to produce phone records related to preparation of game day balls...not necessarily records just from the equipment manager communications. These could have been communications with the GM, his QB coach, Belichick, Kraft, etc.

In addition, when you think someone is playing coy and not providing full information, a request is often made to catch them in a lie. By the way the request was phrease, I doubt that was the reason.

Yes, which is why the NFL's release that Brady destroyed the phone is more about PR than actual substance.

It was actually used as a grounds to uphold the penalty, along with his initial refusal to produce them, along with some inconsistent statements of Braday.

Reading that part of the decision, I read into it a very pissed off Roger Goodell. He really took the role of a pissed off judge. When a judge thinks someone is thumbing their nose at the court...they go off.

There is no doubt in my mind that when Brady informed them, months after the fact, that he had destroyed his phone, Goodell took that as thumbing his nose at the NFL. And he compounded it by giving a bogus reason for doing so, (his "standard practice" of destroying his old phone when getting a replacement wasn't followed with the phone he had before the destroyed phone. He still had it when this investigation began, long after it had been replaced).

Goodell took the time to point all of this out in his decision. That sounded like a ticked off commissioner to me.

Which would shoot a large hole in any argument as to relevance, I would assume?

When a decision maker goes off like Goodell did, the first question asked is whether they have grounds for what they did.

Here, I have little problem seeing the request as relevant.

Keep in mind, you have a question about equipment doctoring, with some evidence that it occured;
You have the one person with the motive to doctor the equipment in the manner alleged;
You have some questionable actions, such as a ball boy going into the ref's room, actually taking the balls, going into a room by himself with them and taking them directly to the field. (The refs were saying they never saw anyone do that before);
You have the one player with the motivation to do so state in a national press conference that he basically had no idea about how anything occured;
You discover this same player discovered to have talked to the equipment manager numerous times over a 3 day period, when he hadn't spoken to the guy for the prior 6 months. He called a meeting with him, something he had never done before;
This same player, when questioned about these conversations, said he didn't recall the specifics of any of them, except that they might have been prepartion for the SB;

In other words...you have suspicious circumstances and suspect no. 1 isn't being fully honest in his statements. Since you can't take him at his word, you are required to verify everything.

The request was relevant.

Technically isn't him telling them that he destroyed the phone an honest answer to the question or request for the phone?

Well yes...and? Because he answers one question truthfully, it isn't logical that all questions are answered honestly.

More importantly, it is not merely about answering questions, it is about producing information. he didn't.

Thanks for the info!

There is one huge caveat in cell phone and e-communication cases. Technology is evolving, and the law is barely keeping up with it. Justice Kennedy, I think, in a case about 5 years ago warned people that the law is nowhere near settled in this area and warned of using specific cases as precedent.

[cookie G]

And most importantly..the best possible statement was made by the Judge in this case when he ordered immediate settlement talks. I have a feeling he knows this isn't good for the NFL, certainly not good for its star player and probably not something he wants to make a decision in. He sounds no nonsense,

If he takes an active role, I don't have much doubt that he can get one or both sides to back down. Often a simple statement such as "neither side is going to be happy with the decision I'm going to make" is enough to get it through their heads.

[Frenchman]

It is only the beginning of Brady vs Goodell round 2!

[starrymessenger]

From what I'm given to understand the one and only substantive issue for the judge is whether due process was followed by the league or whether the actions of the Commissioner were unreasonable and such as to constitute bias. It doesn't even matter if the judge would himself have come to a different conclusion on the evidence than Goodell did. Since the CBA gives the Commissioner the authority to act as he did Brady looks to me to have no chance of succeeding. As for the judge encouraging the parties to consider a negotiated settlement I would not be surprised if this was pretty much procedural in all labour disputes. Regardless there will be no settlement here IMO because I don't see any middle ground given the positions taken.

[YardRat]

And if he denies that, then we're supposed to just take your word for it? That's the situation we're in. He's not admitting to conducting business on his personal phone, so unless you're telling me the standard for this kind of thing should start at hearsay we're at an impasse.

- - - Updated - - -

Whether he denies it or not is irrelevant to your comment...you stated, unequivocally, that it didn't happen, and you don't know that. Notice I said 'If'.

[YardRat]

Does this also apply to the commissioner and other league employees and contractors, or is it only players that can negatively affect the integrity of the game?

The snippet I posted was from the boiler-plate player contract from the CBA, so obviously that section applies only to players. I am not aware if other league employees have similar language in their contracts but I don't think it's a reach to expect that they do.

[DraftBoy]

Whether he denies it or not is irrelevant to your comment...you stated, unequivocally, that it didn't happen, and you don't know that. Notice I said 'If'.

I did? If I stated then I misspoke.

[CommissarSpartacus]

The snippet I posted was from the boiler-plate player contract from the CBA, so obviously that section applies only to players. I am not aware if other league employees have similar language in their contracts but I don't think it's a reach to expect that they do.

Whether or not it's in their contracts, there has to be the will to enforce.

The genesis of this whole cluster**** lies in the laps of the Ravens, Colts and the league.

The guy that sent the email to Grigson sayinjg it's "common knowledge" around the league that Brady ****s with the footballs "can't remember" who he heard say it.

So, what that means is that even though the Colts went to the league with allegations based on hearsay, they can't remember who that hearsay came from.

That's not kosher.

The fact is Colts management, Irsay and Grigson, have all the reasons in the world to set up and smear Tom Brady and the Pats, but has the league or it's investigators looked into a possible frame-up? Of course not.

[Meathead]

while all providers save text message metadata none of them save the content much longer then it takes to deliver it. So Brady's phone was the last copy of that information.

what? have we not seen full text messages taken from servers months later in other cases? or am i remembering that wrong

[justasportsfan]

Goodell: Hey Bob. Your boy cheated and here's what we'll do so I don't look like your puppet. You will accept fines and whatever and I will pretend to be harsh to your girl Marsha. 4 game suspension. Tell MArsha to get rid of the phone so I won't have any evidence just like the video gate . Then you will kick and whine and Marsha will take it to federal court. Of course she will win and you will look justified and I look good for defying you and we will have a laugh at this when we have dinner at your place. Mkay???