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If Tom Brady is cleared of Deflategate charges, could he file defamation suit against NFL? 06.29.15 at 9:33 pm ET
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Tom Brady leads a healthy group of Big 10 alums on the New England roster. (Darren McCollester/Getty Images)

Could Tom Brady try and sue Roger Goodell or the league for defamation if he’s cleared?. (Darren McCollester/Getty Images)

Tom Brady has been caught up in the Deflategate maelstrom since just after the AFC title game, and has been forced to deal with a series of attacks on his character as a result. While others have been quick to say he’s guilty, the quarterback has maintained his innocence.

While the story has yet to play out completely, if Brady is exonerated in some form or fashion over the next few months — whether it’s the result of having his suspension wiped clean by NFL commissioner Roger Goodell or having the penalty overturned in court — could he try and get some payback against the league in the form of a defamation suit?

While it would be an intriguing proposition for the quarterback to try and extract a pound of flesh from those who put this whole thing in motion, legal analyst Michael McCann said Monday that Brady would “face an uphill climb” if he chose that course of action against the league, the commissioner or Troy Vincent, the NFL’s executive vice president of football operations who initially handed down the four-game suspension.

“Brady would need to show that not only were public statements made about him false and damaging to his reputation, but he’d have to show those statements were made with actual malice, which means knowingly or intentionally,” McCann said. “In other words, if the Wells Report contained reputationally-damaging inaccuracies or lies about Brady, that would not be enough for Brady to prevail in a defamation lawsuit. He’d have to show that Wells included statements that Wells knew were false. That would be hard to show, especially as it relates to a controversy where there remain different scientific opinions and theories about what may have happened.

“Debate about the science in Deflategate is itself a defense for defendants in any defamation lawsuit brought by Brady. Those defendants can argue that at the time they made those statements about Brady, there was debate about what happened in Deflategate and thus a lack of consensus about what constituted the truth and what constituted a lie.”

There is some precedent here for a player pursuing legal action against the league. Saints linebacker Jonathan Vilma, who was initially suspended for a season for his apparent involvement in the Bountygate scandal, later saw his ban lifted. Consequently, he filed a defamation suit against Goodell, one that was later dismissed because of insufficient claims and evidence. (When initially told about Deflategate, Vilma had some simple advice for Brady: “Lawyer up.”) If Brady decided to pursue legal action against the league, even though Vilma’s case wasn’t successful, McCann believes he would at least ponder taking a page from Vilma’s playbook.

“If he decided to go that route, Brady would likely retain attorneys who specialize in defamation litigation,” McCann said. “One possibility is Peter Ginsberg, a New York City attorney who represented Jonathan Vilma in Vilma’s defamation lawsuit against Roger Goodell in the aftermath of Bountygate. Ginsberg has represented other athletes as well, including Michael Irvin and Vijay Singh, in legal matters concerning their reputation.”

Read More: Deflategate, Jonathan Vilma, Michael McCann, Tom Brady
Roger Goodell’s decision not to recuse himself from Tom Brady appeal leaves QB at crossroads 06.03.15 at 6:30 am ET
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Roger Goodell's statement Tuesday appears to put the ball in Tom Brady's court. (Billie Weiss/Getty Images)

Roger Goodell’s statement Tuesday appears to put the ball in Tom Brady‘s court. (Billie Weiss/Getty Images)

The news from Roger Goodell on Tuesday that he won’t recuse himself from Tom Brady’s appeal means that the quarterback will get his face-to-face with Goodell later this month. While there’s still time for something crazy to happen — it certainly wouldn’t be out of the realm of possibility, especially when it comes to this, the dopiest scandal in league history — at this point, there appear to be two options open to the QB.

One approach is that Brady and his reps can reverse field and offer up whatever information they might feel is pertinent to the investigation that could be on Brady’s phone. The statements from the commissioner on Tuesday seem to suggest that he’d be open to softening the penalty of Brady were to turn over any of the contents of his phone, saying, “As I have said publicly, I very much look forward to hearing from Mr. Brady and to considering any new information or evidence that he may bring to my attention.” That presumably includes pre-selected and pre-approved texts and messages. (Of course, we’re coming at this from a common-sense perspective — when it comes to Goodell’s thought process in this matter, you never know.) The commissioner could then come out with a statement acknowledging that Brady was helpful, and even come close to sounding magnanimous with a statement along the lines of, “Because Tom ultimately proved to be so forthcoming, we’ve seen fit to reduce his suspension from four games to one/two games. Together we make football!”

However, as has been the case from the jump, the idea of Brady turning over his phone to anyone connected with this investigation is a dubious idea at best. Leaks and misinformation have dominated the investigation from the beginning, and given the track record of the NFL investigators to this point, it would be difficult to convince the quarterback that turning over some of the information in his phone — even in a situation monitored by his reps — would be a good thing.

The other alternative for Brady would be to offer nothing. At this point in his career, given his track record, Jeffrey Kessler probably views the NFL legal team the same way that Brady eyes a Jack Del Rio defense. And so no matter what sort of penalty is ultimately handed down from Goodell, unless the suspension is reduced to nothing, the whole thing ends up in court. The only problem there? The wheels of justice don’t always spin as fast as you might like, and so Brady could be operating on someone else’s timetable. If the thing gets pushed back into the summer, and Brady has to sit and wait — and if he loses — he could still end up sitting for four games, but at that point, it would stretch into the regular season.

While legal analyst Michael McCann said he would understand Brady’s decision to take the second approach, it could also mean an issue for the quarterback down the road.

“One potential drawback for Brady with that second approach — to not offer any new information in his appeal — is that if he later sues the NFL, league attorneys could more persuasively argue to a court that Brady did not make a good faith effort to resolve his grievance with the NFL through the collectively bargained dispute resolution process, according to Article 46 of the CBA,” McCann said Tuesday night.

Regardless, Goodell’s statement on Tuesday puts things back in the hands of Brady, Kessler and the NFLPA. The path they choose in the next two weeks will ultimately go a long way toward determining where this whole sordid mess will end up.

Read More: Deflategate, Michael McCann, roger goodell, Tom Brady
Michael McCann: Reported deadline for league needing to schedule Tom Brady’s Deflategate hearing a ‘non-issue’ 05.25.15 at 9:59 pm ET
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According to the Associated Press, Tom Brady‘s appeal of his four-game suspension for his role in Deflategate won’t be heard by Wednesday, which was initially believed to be the 10-day deadline for the hearing to be held.

However, late Monday night, there was some confusion about the overall timeline. In an e-mail with, legal analyst Michael McCann said that May 27 deadline for the hearing that was reported is questionable for a few reasons, but is ultimately a “non-issue” and won’t have a sizable impact on the proceedings.

“I’m not sure May 27 is the deadline, when the appeal appears to have been filed on May 14, and 10 business days from that would be Friday, May 29 — since it doesn’t include the day it was filed, or Memorial Day,” said McCann, who is also the founding Director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law.

“Also, usually in an event like this when a party has a right to a deadline, that deadline is considered voluntarily waived or postponed when that party takes an action that could cause delay,” McCann added. “Here, the NFLPA petitioned commissioner Roger Goodell to recuse himself. That would seem to give him grounds to take longer than normal.

“My expectation is this deadline proves to be a non-issue.”

In addition to the four-game suspension for Brady, the Patriots were also fined $1 million and stripped them of a first-round draft pick next year and a fourth-rounder in 2017 for their role in Deflategate.

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Read More: Deflategate, Michael McCann, roger goodell,
Michael McCann on D&C: ‘I don’t think there’s anything in those [Aaron Hernandez] text messages that implicates the Patriots or Bill Belichick’ 07.15.14 at 11:10 am ET
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Sports Illustrated legal expert Michael McCann joined Dennis & Callahan on Tuesday to discuss the latest on former Patriots tight end Aaron Hernandez. To hear more from D&C, go to the Dennis & Callahan audio on demand page.

Court documents on Monday revealed evidence that prosecutors turned over to Hernandez’s defense in the Odin Lloyd murder case. The documents included interviews with Patriots personnel including Bill Belichick and Robert Kraft, and 33 pages of text messages between Belichick and Hernandez from February 2013 to May 2013.

“I think Hernandez is interested in developing some type of — at least potentially — some type of defense where maybe he lacked the mental capacity to commit first-degree murder, that he doesn’t have the sophistication or there are other mental defects, if you like, that would have prevented him from engineering the murder of Odin Lloyd,” McCann said.

“I don’t think there’s anything in those text messages that implicates the Patriots or Bill Belichick. I have a feeling that they’re going to be — and again, I’m speculating — something more along the lines of conversations about plays or other teams’ players that the Patriots may have interest in. I don’t think there’s going to be anything in there that damns the Patriots.”

The content of the text messages haven’t been made public, but McCann said he doesn’t expect there to be anything in the texts that would put the Patriots in a dicey legal situation.

“I think we would have already seen the Patriots, if not charged with a crime, some indication that that would happen,” he said. “It’s now been over a year; I would be surprised that Belichick would have been able to just continue to coach without any charges if he’s in any way implicated in this case. I could be wrong, there could be something in there, but I have a feeling it’s not going to be, again, as damning of Belichick.

“Now, there is a clause in the collective bargaining agreement, Article 21, that prohibits meetings between coaches and players during the offseason. Maybe that was broken through these texts, but that’s really an NFL issue, not a legal issue.” Read the rest of this entry »

Read More: Aaron Hernandez, Bill Belichick, Michael McCann, Robert Kraft
Michael McCann on D&C: ‘Patriots really don’t have any legal relationship to the alleged victims’ of Aaron Hernandez 06.20.14 at 11:39 am ET
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Sports Illustrated legal expert Michael McCann joined Dennis & Callahan Friday morning to discuss a possible civil suit the Patriots could face as a result of the Aaron Hernandez murder case. To hear the interview, go to the Dennis & Callahan audio on demand page.

The Patriots have been named co-defendants in a civil wrongful death lawsuit against Hernandez. The lawyer representing families of two Dorchester men allegedly gunned down by the former tight end is seeking a court order to prevent the team from paying $3.25 million contract bonus he is owed.

“They’re usually successful against the defendant himself. They’re less successful against the employer, and that’s because the legal relationship of the employer of the defendant and the victim is often very tenuous,” McCann said. “And I think that’s true here, where the Patriots really don’t have any legal relationship to the alleged victims of Hernandez, where Hernandez clearly does have a relationship with those victims.”

The Patriots terminated Hernandez’s contract following his arrest for Odin Lloyd‘s murder last year, but the NFL Players Association has filed a grievance for Hernandez’s $3.25 million in signing bonus money he says he is owed.

McCann said the victim’s families want the money the Patriots may owe Hernandez depending on the result of the independent NFL grievance process.

“In terms of the legal theory it’s pretty weak that the Patriots have any obligation to these families, and that’s because Hernandez wasn’t acting within the scope of his employment with the Patriots when these murders happened,” McCann said. “Assuming for a minute that he’s guilty, what relationship did the Patriots have when he did it? It wasn’t happening as a New England Patriot; it wasn’t happening during work hours; it didn’t occur at Gillette Stadium, there was no team function.

“It seems like a pretty weak argument between the Patriots and these victims who they have no legal duty to protect. So I think it’s going to be hard to argue that the Patriots have any legal relationship.”

Read the rest of this entry »

Read More: Aaron Hernandez, Dennis & Callahan, Michael McCann,
SI legal expert Michael McCann on D&C: Robert Kraft should not have talked to media 07.09.13 at 9:53 am ET
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Sports Illustrated legal expert Michael McCann joined Dennis & Callahan Tuesday to talk about Robert Kraft‘€™s comments to the media and the Aaron Hernandez murder trial.

McCann said that if he was Kraft’€™s legal adviser, talking to the media would not have been something he suggested.

‘€œMy first advice would be, ‘€˜Please don’€™t talk to the media yet,’€™ ‘€ McCann said. ‘€Let’€™s wait until maybe the end of the summer before we hear maybe a little more about the Hernandez case. I don’€™t think now is the right time. There isn’€™t a lot of news going on with the Patriots and this is going to attract a lot of attention by making comments. But he owns the team, so it’€™s his decision what to say.

‘€œI think his comments yesterday were fine. I think saying that the team was duped was consistent with what the Patriots want to portray. They had no idea that Hernandez was an alleged murderer, they knew he smoked pot and that he had an issue with that, but they had no way of knowing that he was moonlighting as some killer on the prowl. And I think that is an important point for them because they want to make sure that they are not in any way blamed civilly for what occurred. I actually think his comments were fine and I think they go to the narrative that the Patriots want to present.’€

According to McCann, Odin Lloyd‘€™s family could take legal action against the Patriots, but that type of action is unlikely because there is not much of a case to be made against the Patriots.

‘€œI think it is very difficult to imagine a scenario where the Patriots or the NFL can be held civilly responsible for what Hernandez allegedly did,’€ McCann said. ‘€œLet’€™s just assume for the moment that Hernandez murdered Odin Lloyd. What could the Patriots have done? What legal duty do they owe Odin Lloyd? First of all, it didn’€™t occur at Gillette Stadium or at any Patriots or NFL facility. It didn’€™t occur while Hernandez was going to work or was coming from work. It occurred in the offseason at 3:30 am. It is unclear why the Patriots would have any duty to Lloyd. Lawsuits can always happen, but as I wrote yesterday I really think such a lawsuit is unlikely to work.’€

For now, the prosecution is focusing on Hernandez, as it takes a lot of evidence to convict someone of murder. The prosecution does not have the murder weapon to use as evidence, which could make convicting Hernandez more difficult.

‘€œYou can certainly convict someone without finding the weapon, but it could make it a little bit harder because they are going to say, ‘€˜We don’€™t even know who fired the shots.’€™ The prosecution and the police have not announced who actually shot Odin Lloyd. If they can’€™t figure that out, how can you be sure that Aaron Hernandez is the mastermind behind this plot? A plot that we know really doesn’€™t make a lot of sense. He gets into an argument with Lloyd and then comes up with this brilliant idea to murder him so close to his house. It suggests he is not really smart, which may be true, but oddly enough not being smart may end up helping him.’€

To hear the interview, go to the Dennis & Callahan audio on demand page. For more Patriots news, visit the team page at

Read More: Aaron Hernandez, Michael McCann, Robert Kraft,
What does recertification for the NFLPA mean and how long could it take? 07.21.11 at 4:35 pm ET
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While the football world waits on the possible recertification of the National Football League Players Association, there remain questions as to what the recertification process involves and how long it will take. NFLPA chief DeMaurice Smith spoke with the media early Thursday afternoon about the process, and didn’t sound like someone who thinks immediate recertification is a done deal.

“Every individual person has to make a decision about whether they want to be part of a union,” Smith said. “The individual decision is something that our players take extremely serious[ly].

“I know there are a lot of things swirling out there, and I certainly remember comments from some of the owners about how we might not even be like a real union. Well, guess what? The decision to decertify was important, because at the time we were a real union and the decision for our players as men to come back as a union, is going to be an equally serious and very sober one that they have to make.”

Sports legal expert Michael McCann, the director of the Sports Law Institute at the Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law, says that recertification is in the best interests of both sides, but both the players and owners are having their issues with the process.

The league needs the players to recertify for several reasons, not the least of which is that it would help them avoid the possible violation of antitrust laws. Meanwhile, the players are concerned that if they immediately recertify, that would give credence to the NFL’s argument that the whole decertification process that took place in March was a sham in the first place.

“Legally, the two sides could agree without recertification, but it’s in both of their best interest agree to wait until that’s done,” said McCann, who has written about the lockout extensively for

Then, there remain questions about how the recertification process would work. One report indicated that the players needed to get the individual signatures of the roughly 1,900 players, while other reports indicate that it could be done electronically. (One player wondered about the possibility of carrier pigeons being used to distribute the ballots.) McCann said that it’s a different process with different unions, but in his experience it’s something that should be able to, “be done pretty quickly, unless the players are incommunicado or something like that.”

“There are a lot of players ‘€” it’€™s a big group. I don’t know how long it would take per se, but I don’€™t think this would take months,” he said. “If in fact they’ve reached a deal and it’€™s just a matter of them endorsing it as players, I think the recertification vote could be done quickly.”

Read More: DeMaurice Smith, lockout, Michael McCann,
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