|Michael McCann on Dale & Holley: ‘Evidence suggests that [Tom Brady] has been defamed’||02.05.16 at 10:38 am ET|
Sports Illustrated legal analyst Michael McCann joined Dale & Holley with Thornton on Wednesday to discuss the latest chapter in Deflategate. To hear the interview, go to the Dale & Holley audio on demand page.
After league commissioner Roger Goodell announced the NFL would not release PSI measurements taken over the course of the season, many have been left searching for answers.
“I would imagine one possible answer is that the results don’t corroborate some of the theories the NFL offered last year about deflated footballs,” McCann said. “There’s also the possibility that the NFL doesn’t want to share information that could be used by Tom Brady, not in the appeal, but if Tom Brady were to pursue a defamation lawsuit against the NFL.”
The possibility of a Brady defamation suit as been thrown around a lot this week after many suspect the NFL is hiding something by not releasing its data. Although it undoubtedly would drag this case out much longer than he would like it, it is certainly an option for Brady.
“The evidence suggests that he has been defamed, in the sense that there have been things said about him that basic tenets of science repudiate,” McCann said. “If you’re him, you could clearly show that you’ve been harmed. His reputation has been harmed, he’s been embarrassed, the rest of the country calls him a cheater. … Do I think he’s going to do it? No. But I would be pretty furious if I were him.”
|Michael McCann on D&C: ‘Going to be a very tense hearing’ on Deflategate||01.29.16 at 12:15 pm ET|
Football season may be over for Tom Brady, but Deflategate is far from finished. On March 3, the NFL will have its appeal of Judge Berman’s ruling heard. Sports Illustrated legal analyst Michael McCann was on Dennis & Callahan with Minihane last month to share what he expects will take place in court that day. To hear the interview, go to the Dennis & Callahan audio on demand page.
While Brady’s legal team is led by league foe Jeffrey Kessler, the NFL seems to have put together an even more star-studded group of lawyers for this appeal.
“The NFL has hired some of the best attorneys around. They hired Paul Clement, Erin Murphy, these are names that the audience may not know, but these are big-time appellate attorneys,” McCann said. “This must be their strategy, to go all out, and to go to that hearing on March 3, and really wage a strong case against Tom Brady. I have a feeling that’s going to be a very tense hearing.”
McCann, who has personally been involved with appeal hearings in the sports world, most notably the Maurice Clarett case, said not to expect Brady or Roger Goodell to be involved in the upcoming hearing.
“That hearing itself probably will be about an hour, maybe an hour and a half. A lot of appeal hearings only go 45 minutes. During the appeal hearing, Brady plays absolutely no role, Roger Goodell plays no role. If they’re there, they’re probably just in the audience,” McCann said. “Each side’s lead attorney will get to present for some amount of time, 10 minutes, 15 minutes, and during that time each side’s lead attorney will make their best case against the other side. Yet interestingly, during that time the judges can interrupt at any point.”
For Patriots fans who have been counting down the days until this legal fiasco is over, they might be waiting until early summer and possibly beyond until that wish comes true.
“When that’s over, then months later — two, three months or so — the second circuit will issue an opinion. So my guess is that we get a decision by May or June,” McCann said. “Whoever loses this appeal, whether it’s the NFL or even Brady, will have an opportunity to petition what’s called ‘en banc’ review. ‘En banc’ means trying to get the entire Second Circuit set of judges to hear the appeal. Now, the Second Circuit only grabs these en banc reviews less than 1 percent of the time, so the odds of that happening would be very, very slim. If that fails, then the loser could petition the United States Supreme Court.”
|Michael McCann on D&C: ‘Tom Brady is portrayed in a worse light’ with each Deflategate brief filed by NFL||12.22.15 at 9:17 am ET|
Sports Illustrated legal expert Michael McCann checked in with Dennis & Callahan on Tuesday to discuss the latest Deflategate developments after the NFL filed their response brief on Monday. To hear the interview, go to the Dennis & Callahan audio on demand page.
McCann started by explaining what exactly was filed by the NFL on Monday.
“The reply brief is a response to what the attorneys for Tom Brady and the NFLPA filed earlier this month on Dec. 7,” McCann said. “Very basically, the reply briefs tried to reiterate arguments the league has already raised and the key argument for the league is that Judge Berman got it wrong. … Very basically, it is a reiteration of the argument that Judge Berman got it wrong.”
McCann also said that with each brief filed by the NFL, it makes Brady look worse and worse.
“The tone of this brief, and honestly it seems as if with every successive brief filed by the NFL in this case, Tom Brady is portrayed in a worse light,” McCann said. “In this brief, the brief said he engaged in unique and aggregate misconducts, posed a threat to the integrity of and in public confidence in the game. The rhetoric has really been ratcheted up. I don’t know if that is necessarily the most effective tool because we know that Ted Wells long ago gave a much more modest account of what he thought about Tom Brady and allegations against Brady.
“When the judges ultimately sit down and look at this case, I think some of them are going to scratch their heads and say, ‘Why is Tom Brady now an active member of some grand plot to undermine the NFL?’ It just seems like there’s a disconnect between what was originally alleged and what is being alleged now.”
The next step in this case is oral arguments will be heard by a three-judge panel on March 3, but Brady and Goodell will not speak, as it will be just the lawyers. McCann predicted it will take a few months for the judges to come up with a decision with that likely coming in May or June.
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|Michael McCann on D&C: NFL’s reported deal to Tom Brady ‘maybe the worst offer I’ve ever heard’||09.01.15 at 9:47 am ET|
Sports Illustrated legal expert Michael McCann checked in with Dennis & Callahan on Tuesday to discuss the latest Deflategate developments and what is likely next in the case after Judge Richard Berman rules. To hear the interview, go to the Dennis & Callahan audio on demand page.
On Monday it was reported the NFL would be willing to cut Tom Brady’s suspension to three games if he admitted guilt. McCann said if the offer was true it was one of the worst he’s ever heard.
“It’s maybe the worst offer I’ve ever heard,” McCann said, “That offer, they had to have made it knowing there’s zero percent chance that Tom Brady would take it. If they had offered a more nuance admission — you admit to reckless behavior in terms of your cooperation, something like that, maybe that’s a start. But to expect he’s going to admit to the Wells Report is really absurd.”
“First of all, that offer is really ridiculous,” he added. “Why even make that offer? What kind of concession is that if it’s three games plus an admission of fault. There’s absolutely no reason for Tom Brady to take that and I am sure Judge Berman at a minimum disappointed to hear that if it turns out to be true, that’s the best offer the NFL has made after literally weeks of settlement conferences that that’s all they could come up with. I don’t know if Judge Berman is going to rule against the NFL because of that, but it’s yet another factor to say, ‘Look, I know the NFL will appeal if I vacate the order, but I think it’s the right thing to do.'”
Judge Berman is expected to rule as early as Tuesday and no later than Friday on the case. McCann went over all the different scenarios.
“If he rules for Brady, Tom Brady plays,” McCann said. “The NFL would then file an appeal to the U.S. court of appeals for the second circuit. That would take at least months to play out. Even an expedited review, that would take 2-3 months. A normal review would go to next summer. During that time Tom Brady would not be suspended. He would play. The NFL would hope an appeals court later on reverses and then Tom Brady would be suspended at that point. The other scenario would be Judge Berman rules for the NFL. In that scenario Tom Brady would immediately seek a stay.
“A stay would be a manner in which the suspension is not carried about until his appeal is decided so that would again take months. Brady would first go to Judge Berman. He would petition for a stay and if that fails he would then go to the second circuit. He would have to show a reputable harm. Reputable harm would be, ‘Look, I’m never getting these four games back. They can’t be replayed.’ The NFL would say, ‘Well, you’re really missing the point Tom. It’s about missed game checks.’ They would go back and forth. There’s also a possibility Berman could vacate the suspension, but then the NFL says, ‘Well, vacating the suspension doesn’t mean we can’t repunish Tom Brady. All vacating the suspension means is that Roger Goodell’s decision to uphold the suspension has been lifted.
“I think Judge Berman — if he orders for Tom Brady, will also say the NFL is barred from having Roger Goodell hear another hearing from Tom Brady again.”
Following are more highlights from the conversation. For more Patriots news, visit weei.com/patriots.
|Michael McCann on M&F: ‘I think Tom Brady feels pretty good right now’||08.12.15 at 1:59 pm ET|
Attorney and SI.com legal analyst Michael McCann joined Merloni and Fauria on Wednesday to talk about Tom Brady and Wednesday’s Deflategate hearing, which he said was a positive one for the Patriots quarterback. To hear the interview, visit the Merloni and Fauria audio on demand page.
Shortly after court was adjourned Wednesday afternoon, McCann tweeted that it was “a good day for [Brady].” He reiterated that as well, citing judge Richard M. Berman’s dissection of the evidence in the case.
“I think Tom Brady feels pretty good right now,” McCann said. “This was a day where the judge, Judge Berman, took the discussion in a direction that I don’t think either side predicted, and that was essentially fact-finding. Both sides expected the judge would focus on questions of process, how did the NFL go about applying Article 46 of the CBA, but instead the judge spent most of the time today not on that question but instead on the fundamental question, ‘Where is the evidence that Tom Brady did something wrong, and how did the NFL come to the conclusion that he partook in some ball deflation scheme?’, which itself hasn’t been proven. I think the judge raised serious questions about the lack of evidence that actually shows that Tom Brady did something wrong, and it seems like the judge can’t get over that, and that’s great news for Tom Brady.”
Article 46 is in regards to player conduct policy, and it allows commissioner Roger Goodell to punish players for any conduct that he deems detrimental to the league. Essentially, it gives the commissioner a lot of power, regardless of how weak a case might be, which isn’t good for Brady, according to McCann. However, McCann notes that Berman calling into question the evidence supposed to detail the quarterback’s guilt is important for Brady’s case.
“It doesn’t mean Tom Brady’s going to win, and I don’t want to imply Tom Brady has won the case, but I think the judge is signaling to the NFL, ‘Before you don’t settle, I’ve got real questions about what you’re alleging,’ ” McCann said.
“I’m more inclined to think Tom Brady would win, based on what we heard today, if there is a decision,” he added. “I also think that it makes it more likely that the NFL will maybe revise its settlement offers, but all of that said, the reality is that both sides have good reasons not to settle.”
|SI legal expert Michael McCann on D&C: After reading Tom Brady appeal transcript, ‘I don’t understand why he’s being suspended’||08.05.15 at 10:31 am ET|
Sports Illustrated legal expert Michael McCann checked in with Dennis & Callahan on Wednesday to discuss the latest Deflategate developments, and the UNH law professor explained why he’s now shifted his position in favor of Tom Brady. To hear the interview, go to the Dennis & Callahan audio on demand page.
After seeing the transcripts of Brady’s appeal hearing that were released Tuesday, McCann said he has altered his thinking and now can’t make sense of why Brady is facing a four-game suspension.
“I don’t understand why he’s being suspended, at the end of the day,” McCann said. “And I say that because, let’s look at the testimony. He categorically denied any wrongdoing. So from that you have the fact that the standard is preponderance of evidence more likely than not, you have his denial. Then you have the absence of evidence contradicting him. Some people said, ‘Oh, he was a little evasive.’ Well, if you ask someone the same question 12 times they’re going to come up with slightly different answers and you might contend that they’re somehow being evasive because their answers aren’t the same each time. Well, that’s human nature, our answers are never the same each time.
“I look at this testimony and I say for all the failing the NFL has, the bizarre process they use, at the end of the day where is the evidence Tom Brady participated in a ball-deflation scheme? I don’t see it. Then you’re left with, OK, was he cooperative? Well, Ted Wells found him sufficiently cooperative. You have Ted Wells saying he is. Why would that would even warrant a suspension if he isn’t as cooperative as he should have been? This doesn’t add up to me.”
McCann noted that Judge Richard Berman’s job is to determine if the league overstepped its authority or mismanaged the situation, not if it penalized Brady too harshly. But after seeing the appeal transcript, McCann said Berman likely will have some concerns to address with the league when the sides get together for settlement talks.
“Initially my expectation was that he would tell Tom Brady in essence, ‘Look, this may not be fair, but the CBA gives Roger Goodell wide latitude. And even if I’m not sure about the allegations against you, it looks like the league has discretion.’ But after reading the testimony, I’m really leaning in the other direction. I’m think the judge is going to tell the NFL this was a kangaroo court. You have the cross-examiner also involved with the preparation of the so-called independent report that clearly wasn’t independent. You have categorical denials by the person who’s alleged to have done the wrongdoing. You have the lack of evidence contradicting those denials.
“I just don’t see, as deferential as the court will be to the NFL, where’s the actual evidence? What is the reasoning that led the NFL to suspending Tom Brady? And if I’m a judge, I’m going to have some hard questions for the NFL.”
McCann predicts Brady ultimately will end up with no more than a one-game suspension.
“I think there’s a good chance it will get settled in a couple of weeks. I don’t think it’s going to go to a [judge’s] decision,” McCann said. “I think right now they’re probably negotiating between a fine and one game, and there’s probably an argument over that. Before I thought maybe Brady would maybe agree to a two-game suspension, but after reading this transcript I’m of the belief that Brady should hold out until he gets it down to a fine.”
|If Tom Brady is cleared of Deflategate charges, could he file defamation suit against NFL?||06.29.15 at 9:33 pm ET|
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.”
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