|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.”
|Roger Goodell’s decision not to recuse himself from Tom Brady appeal leaves QB at crossroads||06.03.15 at 6:30 am ET|
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.
|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|
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 WEEI.com, 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.
For more Patriots news, check out weei.com/patriots.
|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|
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 »
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