NEW YORK — Below are Tom Leyden's full notes from Thursday's proceedings in the Second Circuit Court of Appeals related to the Tom Brady case. This is not an official transcript and it is based on hand-written notes taken by Leyden in the courtroom in real-time. They provide an overview of what was discussed and argued over the course of the 72-minute hearing.
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1:56: attorneys announce presence. Judge Katzmann details logistics of hearing and promises to extend time of oral arguments if necessary.
NFL counsel Paul Clement opens by discussing Article 46 of the CBA, which gives Commissioner Roger Goodell power to discipline players for conduct detrimental to the game.
Judge Katzmann questions if Tom Brady can't appeal any decisions made by Goodell based on findings during the appeal process of original discipline. He goes on to confirm Brady was suspended for his knowledge of and consent to a scheme to deflate footballs. Katzmann is trying to determine how, if at all, the discipline was imposed for his part in a willful obstruction of investigation, based on new findings throughout the discipline process.
Judge Katzmann: How can you explain upholding discipline based on new findings?
Clement responds by saying the discipline is based on Brady's knowledge and submits it is appropriate punishment based on the destruction of evidence. On appeal, Commissioner Goodell upheld the suspension and confirmed it was appropriate.
Judge Chin: Shouldn't there have been notice that destruction of the phone was basis for discipline?
Clement: As it morphs, is notice at that point necessary? Any player should be on notice that obstruction constitutes conduct detrimental.
Judge Chin clarifies that Goodell did not increase suspension after the NFL discovered Brady destroyed his cell phone.
Clement: Looking at the destruction supports the reasonableness of the discipline.
Judge Chin: How do we know Goodell wouldn't have lowered the suspension had the evidence regarding the destruction not come to light?"
Clement: If Mr. Brady had been a more credible witness in the commissioner's eyes, would that have lowered the punishment? I don't know.
Judge Parker: "What opportunity did Mr. Brady have to defend himself in the cell phone destruction issue?" He also asks if the parameters of the cell phone was well known.
Clement says it is a piece of the puzzle and further proof the NFL did not get full cooperation from Brady, as it relates to his text messages and electronic communications and communication with John Jastremski in the days following the AFC Championship Game.
Judge Chin asks Clement about the NFL player policies and wants clarification about a player's first offense and whether it's punishable by a fine.
Judge Chin: How do you respond on the merits?
Clement: If you look at the whole policy... it tells the player in the manual any possible discipline is in addition to the commissioner's ability to discipline based on conduct detrimental.
Clement references page 389 of the manual which details possible penalties, pointing out a line bolded at the top that indicates the penalties are a possible minimum with the possibility of additional discipline up to and including suspension.
Judge Parker: At first blush, this seems like a Draconian penalty. Why is inflation level so critical in these games. What advantage do you get?
Clement: Everyone has his own preference. Mr. Brady likes it less inflated. Aaron Rodgers likes it more inflated. These are the rules of the game and it's important to understand the decision is for the commissioner and not the court. It's something that affects every play of the game. It's a particularly serious misconduct because it's an effort to try to circumvent the process.
Parker: Is there any real advantage on the field?
Clement again points out the level of inflation is a matter of personal preference and makes the analogy that a team with more speed might benefit from a field that was 120 yards long. A team that was more powerful, yet slower, might benefit from a field that was 80 yards long. There are rules in place and this rule on deflation is taken seriously because the level of inflation is checked before every game. To go through a deliberate scheme is particularly egregious.
Judge Katzmann asks about "stickum" and under the same reasoning, questions why the penalty for using "stickum" is only $8,268. He questions why there is such a "gross disparity" between that penalty and a four-game suspension and how can that not lead you to the conclusion the commissioner was exercising random industrial justice. Katzmann also points out the commissioner seems to have a lot of latitude and the fact Clement cites that Goodell can utilize new facts found throughout the appeals process to influence his final decision on discipline.
Clement rebuts that the disparity is perfectly reasonable and there is a degree of difference between a single player's infraction and a scheme to affect every ball used on every (Patriots) play, coupled with a concerted effort to avoid detection.
Katzmann: Why isn't it closer to stickum versus being compared to using steroids?
Clement suggests the effort to avoid detection led the commissioner to believe it was an act that was equivalent to this.
Judge Parker: The regime (NFL) is fundamentally different. Goodell is in effect 'judge, jury and, not executioner, but enforcer.' His coincidental responsibilities make this type of case fundamentally different from arbitration we typically see.
Clement points out it's a result of what both parties (NFL and NFLPA) bargained for and negotiated for - that the commissioner would play this role in matters of conduct detrimental to the league. It may seem bazaar.
Judge Parker: Just different.
Clement: There has to be a mechanism to resolve those disputes - it gives a lot of deference to the commissioner. He compares the Supreme Court ruling in the Casey Martin case and notes most people would ask, "What's the big deal about walking instead of riding a golf cart?" The commissioner should have this type of authority because he's intimately knowledgeable about the details and nuances of the game.
Judge: Could Mr. Brady have been suspended for a year?
Clement: He could have. I don't think he would have. This is not necessarily a power Mr. Goodell would want. It's not the most popular position to be in. The parties made the agreement that in matters concerning conduct detrimental, they'd give the commissioner authority in the first instance and on appeal.
Judge Katzmann: In the Wells Report, there are references to gifts to Mr. McNally and Mr. Jastremski. It says nothing that these gifts were more likely than not inducements to participate in a scheme.
Clement: The commissioner said he's in no way be bound solely by what was detailed in the Wells Report. There was an inference that those gifts were inducements.
Katzmann: Are you suggesting Mr. Brady understood those inducements were rewards for participation in any scheme, or is this type of behavior just matter of course between a player and a locker room attendant?
Clement: Mr. Brady couldn't clarify the gift-giving because he had to stick to his story. Brady said he didn't know Mr. McNally, so he couldn't address this issue. The commissioner didn't find that testimony credible. He emphasized the numerous conversations and texts exchanged between Jastremski and Brady on the Monday after the AFC Championship Game. Brady claimed those discussions took place because they were discussing how to prepare footballs for the Super Bowl two weeks hence, even though there was no history of text messages like this in the past. Jastremski also made his one and only visit to the quarterback room. The commissioner found that not to be a credible explanation for that conduct. In fact the commissioner could have thought, "If anything, things are worse than I thought."
Katzmann wraps up the NFL's time by asking if there was any note of the electronic communications issue in the interview notes from the Paul Weiss law firm. (Note that the NFLPA had argued they had not received equal access to interview notes, which hindered their ability to thoroughly prepare and argue during Brady's NFL appeal before Goodell)
Clement responds saying the league was only aware of the information provided in the Wells Report.
2:26 - Paul Clement is excused by the bench and Jeffrey Kessler steps to the microphone to represent Tom Brady and the NFLPA.
Kessler isn't even afforded the opportunity to make an opening statement. He's immediately hit with questions from the three-judge panel.
Judge Chin wants to talk specifically about how the NFLPA is leaning on the issue of notice as it relates to uniform and equipment policies and if footballs fall under the uniform and equipment policies.
Kessler begins his arguments by suggesting the NFL took one sentence and distorted what was presented. He references a number of exhibits attached to the legal briefs (JA 1431, 1432, 956) and ultimately points out that on Line 19 is the specific penalty notice that suggests a player would be fined $5,512 for a first offense. That's it. That's the only notice a player has ever had.
Judge Chin: As you look at Lines 13 and 14, is it possible to assume this doesn't apply to this case because we're talking about footballs.
Kessler: We are relying on the fact that players had no notice - the NFL chose not to give the complete policy.
Judge Parker: There's nothing about balls in equipment policy JA393?
Kessler: It does not use the word, "ball," but JA393 is not the policy we're relying upon. That's a complete misdirection by the NFL. We are relying upon JA381, which covers game-related player conduct rules, including safety, hits, contact with fans, etc., and then JA384 which covers other uniform and equipment violations.
Judge Chin: The fact that the first offense would result in a fine seems to apply to players' individual equipment or uniform and not the ball.
Kessler discusses JA389, the schedule of fines, each of which were collectively bargained.
Judge Katzmann: But is does note that fines are the minimum?
Kessler: A dollar fine, yes.
Judge Chin: Other discipline, including suspension, is in the next sentence.
Judge Parker: Hypothetically, let's assume a mistake was made and the balls weren't deflated, but during the course of the hearing, one of the most celebrated players in the game testifies in a manner considered to be untruthful. Isn't the destruction of the phone enough to suspend? Why not suspend Mr. Brady just for that?
Kessler: Because the commissioner has no such authority under the Collective Bargaining Agreement. The discipline of the commissioner must be imposed at the first level.
Judge Chin: Why doesn't the conduct detrimental clause apply to this conduct, too? It's more appropriate to apply the conduct detrimental clause at this point.
Judge Katzmann: Your point is that there should be some notice that a player should know what he can appeal? Let me play the other side. Arbitration is different than the judicial system. Where does it say, 'If you deflate balls and obstruct justice you will only be fined?"
Kessler references paragraph 15.
Judge Parker: It seems to me you're getting hyper-technical. Anyone within 100 yards of this issue knows the cell phone issue raised the stakes in this thing. It took the case from air in a football to compromising a proceeding the commissioner convened.
Kessler: We never looked at this is an issue of cooperation or failure to cooperate because Mr. Wells never asked for Mr. Brady's phone.
Judge Parker: Why isn't an adjudicator allowed to challenge the phone? Mr. Brady's explanation of that made no sense whatsoever. It was incredible.
Judge Chin: The commissioner did not increase the discipline after discovery of the phone issue... When you read all the evidence of ball tampering, it's compelling and overwhelming. How do we second-guess the four-game suspension?
Judge Parker: Do you accept the facts?
Kessler: I accept the facts.
Judge Parker: You accept the facts?
Kessler: I don't agree with them, but I accept them for the purpose of this appeal. If you agree with us on notice and fundamental fairness and exceeding authority, then we must still defer to the decision of the District Court.
Judge Parker: Those points have been discussed in the brief.
Judge Katzmann: The commissioner can have to field issues like this. Isn't that why the agreement allows the commissioner to discipline for conduct detrimental?
Kessler: The NFL decided to give specific rules, fines and notice and the reason that was done is in some cases, a suspension that was previously two games they wanted to be six games and the CBA requires notice of such change.
Judge Parker: A hypothetical - An equipment violation also comes with a $5,000 maximum penalty, or a minimum $5,000 penalty, but during the course of arbitration, we find key witnesses have been bribed. Are you saying the commissioner couldn't judge based on those findings?
Judge Katzmann: Federal rules don't necessarily apply. Arbitration is more casual - more down and dirty.
Kessler: If the arbitration process uncovered anything beyond the original findings, the player has the right to appeal.
Judge Chin: What tells us what was presented?
Kessler: A player has the right to appeal a decision. The arbitration was only reviewing, 'Was that discipline on those ground reasonable?', not 'I found new facts, let me impose new discipline.' The process needs to...
Judge Chin: How did the commissioner go beyond what was his authority?
Kessler: If discipline was based on destruction of a cell phone, if it was based on inducements or something else, new conduct has to be disciplined in the first instance.
Judge Parker: I don't follow. If something occurs, it isn't a basis for discipline, it's the basis for a start-over? A full stop? Initiate a new charge?
Kessler: In this case it gets confused because it's Mr. Goodell in both cases. In other cases, the NFL has employed a third party for arbitration hearings, for instance, Harold Henderson. If something new happened with Harold Henderson overseeing the arbitration, he couldn't impose discipline.
Judge Chin: It can be said the destruction of the phone was a further act of non-cooperation.
Kessler: I never told Mr. Brady there would be any discipline if he didn't produce the phone. You can say he should. He did not. They imposed discipline based on "generally aware." Mr. Wells had all the emails. The phone company produced the numbers which were texted to. There was no disconnect between what they had and what they did not receive because the phone wasn't presented. The commissioner was motivated to create this issue because "generally aware" wasn't enough.
Judge Chin: What was the motivation to do so?
Kessler: The fact he spent $3 million on a report that got them to "generally aware."
Judge Parker: Are you suggesting the commissioner was out to get Mr. Brady?
Kessler: I'm saying they don't have the physical proof to support whether the balls were under-inflated.
At this point, the judges ask Kessler about his briefs and the fact he argued about unequal access to the notes gathered during the NFL's investigation of Tom Brady and the Patriots. The NFL contends the NFLPA had access to what it needed, but Kessler disagreed, suggesting the law firm of Paul Weiss (Ted Wells) did 66 interviews and the NFLPA did not have access to those notes.
Judge Chin asks how we can second-guess the findings, and even if there was an exchange of internal notes, it would be hard to imagine it would make much difference. Kessler argues that's fundamentally unfair, because, 'We don't know what's in the notes.'
Judge Parker: So you're saying you didn't get discovery.
Kessler: We didn't get fundamental information that the NFL got. Equal access.
Kessler was excused at 3:03pm, at which point Paul Clement once again approached the microphone for a brief rebuttal.
Clement points out the NFL clearly asserted in its initial discipline notice to Brady that part of the suspension was due to his failure to cooperate, including his failure to give text messages, e-mails, etc.
Judge Parker: At what stage was that?
Clement: In the letter imposing the suspension, which leads the appeal, where the phone issue comes out.
Judge Katzmann: Mr. (Troy) Vincent didn't say there were concerns of obstruction.
Clement: What he said was, "failure to cooperate."
Clement goes on to clarify a point on the investigatory notes, saying he did not review any of the Paul Weiss (Ted Wells) internal notes
Clement: Finally, as it relates to JA389, you can question my reading or buy the other side's view. That's not the test. Is the commissioner's decision grounded in the CBA? This may or may not have been a platonic situation. What's the point of having witnesses at the appeal if the testimony can't be used? I urge the court to reverse/remand the vacation and end this right now and order that the discipline be affirmed because we don't want this remaining an issue over the course of another football season.
The judges ask if anything they decide will have a legal impact on the pending appeal in Adrian Peterson's case in Minnesota.
Clement: This will not directly have an impact on this case. Again, I urge the court to decide this case expeditiously.
The hearing concludes and Judge Katzmann adjourns court
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