Who's who in the Tom Brady appeal hearing with NFL
I received a text message from a source last week that read, "Tuesday, 9 AM, league office...the showdown begins...mano a mano."
Sounds like a UFC promotional ad, right?
Unfortunately, there won't be cameras inside the boardroom where Tom Brady and Roger Goodell will go eye to eye for the first time since the Commissioner and Troy Vincent, the NFL's executive vice president for operations, levied a four-game suspension to the game's biggest star. And I strongly doubt there will be any punches thrown, either. But don't for a second think there won't be drama and at times, rising tensions. If the Super Bowl matches the best of the best on the gridiron, Brady's appeal will pit some of the sports legal world's biggest and brightest this week.
It won't quite be a Brady vs. Goodell showdown at the OK Corral, either. It'll be Goodell overseeing deliberations, in the role of "judge", as two sides (The NFL and Brady) are on opposite ends of the table.
In the 40 days that have passed since the league came down hard on the Patriots (and even harder on Brady), the quarterback has never backed down. Though Brady, himself, has not gone on public record since being docked the first four games of the 2015 season, his agent, Don Yee, did come out swinging against the league in the aftermath of the Wells Report, writing in a statement: "I am very confident the Wells Report will be exposed as an incredibly frail exercise in fact-finding and logic. The NFL has a well-documented history of making poor disciplinary decisions that often are overturned when truly independent and neutral judges or arbitrators preside, and a former federal judge has found the commissioner has abused his discretion in the past, so this outcome does not surprise me."
Well, Yee and Brady aren't getting a truly independent or neutral judge this week. They're getting Goodell. Judge, jury, and potentially, the executioner, too.
The NFLPA requested that Goodell recuse himself, but that wasn't happening. The NFL's collective bargaining agreement -- something the players approved in 2011 --€” grants Goodell the right to preside over the appeal. In a case as high profile and as unique as this --€” the league's most recognizable face, the reigning Super Bowl MVP, a four-time champion --€” Goodell wants to be the one hearing Brady's case, and making the final decision, as well.
As "mano a mano" as we may want this appeal to be --€” Brady wearing Stetson cologne and having a legal brief in his holster --€” it won't be all that Wild, Wild West. I'm told these appeal hearings are typically very civil, quite professional, and at times, laborious. The laborious part, however, could end up being the most fascinating. Brady's side believes there are countless holes in the process behind Wells' 243-page investigation, and a recently released scientific analysis of the deflated balls, titled "On the Wells Report", by the American Enterprise Institute sheds light on scientific issues, as well. Though the Patriots have more or less removed themselves, as an organization, from the equation, Tom Brady's fighting for his legacy. And he may very well have a case. His legal team has certainly had enough time to construct its argument.
Though the Brady appeal hearings should last no more than two days this week, there's no immediate timeframe as to when a decision will be made. Greg Hardy had his formal appeal hearing in Washington D.C. on May 28. Now, nearly a month later, there's been no word or decision on where that stands. Hardy, as of now, is still suspended for the first 10 games of the season. The league has taken its time, there, and could do the same with Brady.
And if Brady isn't happy with the results of his appeal? The story might not end just there. He can still file a lawsuit in federal court, arguing that the NFL's appeals process is inherently unfair. One key part of Brady's representation team is attorney Jeffrey Kessler (more on him later), who has never shied away from taking the league to federal court.
Before the federal courts get involved, though, it'll be Brady, Goodell, and a few other key names and faces you might care to get familiar with.
Here's a quick breakdown of the key players who I'd suspect could be at the table this week. As of this posting, neither side had finalized who would be in the room, just yet. But I'd imagine the boardroom table would look something like this.
At the head of the table:
Roger Goodell: NFL Commissioner: No formal legal background, but has spent entire professional career, starting in 1982, working at the NFL. Prior to being named Commissioner, was in charge of many of league's top initiatives, including the broadcast deals. No stranger to a boardroom or the negotiating table, he originally presided over the Saints' "BountyGate" case, before appointing former NFL Commissioner Paul Tagliabue to take over.
On the NFL side of the table:
Jeff Pash, Executive Vice President and General Counsel, NFL: Pash is usually brought into the fold on the highest priority legal matters --€” the lockout and new CBA, most notably -- and this, with what's at stake, is likely one of them.
Larry Ferrazani: Vice President, Labor Litigation and Policy, NFL: One of the league's top legal minds and a mainstay in the courtroom for the league's labor battles. Joined the league in 2007 after spending five years with the FBI. For years, both before and after the new CBA, Ferrazani's group was instrumental in the league's disciplinary cases.
Kevin Manara: Senior Labor Relations Counsel, NFL: Manara is another leading attorney in the league office. Most recently, he was one of the few men and women in the room for Roger Goodell's initial -- €”and oft-scrutinized -- meeting with Ray Rice. His notes, more meticulous than the ones taken by others in the room, were used as material in Judge Barbara Jones' ruling on Rice's suspension. Manara, like Ferrazani, is often involved in many of the league's disciplinary cases, rulings, and appeals. Richard Sherman, for one, faced a disciplinary action (four games) for violating the league's substance abuse policy in 2012. Sherman appealed the case, noting irregularities in the testing process. He was up against the league's Management Council, led by Manara.
Brook Gardiner, Senior Labor Relations, NFL: Gardiner was one of the leading legal voices during the league's CBA negotiations and has seen his star rise only more since. Princeton educated and an NYU Law School alum, he could be in the room on Tuesday morning.
Adolpho Birch, III: Senior Vice President, Law and Labor Policy, NFL: The son of legendary attorney and judge Adolpho A. Birch, Jr., the onetime prominent chief justice of the Tennessee Supreme Court, Birch, III has long been one of the league's point people in both hearing and doling out disciplinary action. Birch, who's name made headlines in 2014 for an ill-fated interview with ESPN in the wake of the Ray Rice suspension, has presided over much of the league's performance enhancing drugs issues over the last decade. Harvard-educated and a graduate of Vanderbilt Law School.
Troy Vincent, Executive Vice President of Football Operations, NFL: Vincent has spent 23 years as a player and executive -- €”both on the players and league side -- €”and was the individual who recommended Brady's four-game suspension to Goodell, while going through the Wells Report. Vincent's role in ushering out any disciplinary actions at all has been a point of contention from the Brady side.
David Gardi, NFL Senior Vice President of Football Operations: I'm told by a few sources that there's a chance Gardi likely won't be in the room, himself, but I wouldn't be shocked if he was, given the nature of this case and the amount of times his name continues to rise to the surface. Gardi's main focus at the NFL is to ensure that the game on the field is being played at the best quality possible. Gardi sent a letter to the Patriots about a "preliminary finding" that balls may have been tampered with, including noting one ball was measured at 10.1psi at halftime of the AFC Championship Game. But the Wells Report did not have any documentation of a ball measured at that psi level. Gardi's letter to the Patriots is referenced in the Wells Report, though, which could be a big point of contention for the Brady side.
Outside Counsel: The NFL could bring in outside counsel for a case like this. One possibility is the work of Covington and Burling, and attorney Gregg Levy. Levy has long served as the principle outside counsel for the league.
Ted Wells, Independent arbitrator: Wells is a criminal attorney, who was hired by the league to investigate "Deflategate". He concluded in his report that it was "more probable than not" that Brady was "generally aware" of tampering with the footballs in the AFC Championship Game. Wells, whose work has been publicly criticized, reportedly could be in attendance.
On the Brady side of the table:
Tom Brady, Quarterback of the New England Patriots: Brady's phone and electronic records could be brought into question again. It's worth noting that when Robert Mueller investigated the NFL office, including Goodell, in regards to the Ray Rice situation, phones and electronic records were handed over. When Ted Wells requested this from Brady, there was no cooperation. That lack of cooperation was a sticking point for Goodell the first time around.
Don Yee, Tom Brady's agent: Yee came out of the gates swinging for the fences, appearing on MSNBC, CNN, and Dan Patrick's radio show in the days immediately following the Wells Report findings. He's been fairly quiet since, formulating an attack plan for the appeal. Yee, of course, is an attorney -- €”and a well-respected one at that -- as well.
Jeffrey Kessler, Partner, Winston and Strawn: Kessler's a bulldog, and once described to me by a source as "the thorn in the NFL's ass". An excellent litigator, he's also been the point person for Saints linebacker Jonathan Vilma, Vikings running back Adrian Peterson and Ravens running back Ray Rice's recent appeals, all of whose suspensions were ultimately reduced or overturned. Kessler also has a great familiarity with Brady, as they worked together in a 2011 case, Brady v. the NFL. This ultimately led to the ending of the lockout and the new CBA.
Tom DePaso, General Counsel, NFLPA: Brady and Yee were on an island, at first, but ultimately joined forces with the NFLPA in the appeals process. DePaso has been with the NFLPA since 1984, but was named General Counsel in 2012, after the latest CBA was inked. He's a longtime union voice and has seen it all. Very valued at the table.
DeMaurice Smith, Executive Director, NFL Players Association: A former top attorney, himself, Smith could play a role in the Brady appeal, as well. Remember, this is the face of the NFL; the PA's golden goose. Smith would be well-advised to align himself fully in Brady's corner.
Heather McPhee, Associate General Counsel, NFLPA: Not as high profile as some of the other attorneys on the list, McPhee's meticulous work and steady demeanor are one of the main reasons Ray Rice is able to play football today. McPhee worked with Smith at their old D.C. firm, Patton Boggs, and her presence has been a valued one on the PA side. She proved integral in the Rice hearings.
Again, these are just possible names. There could be many less or many more that end up playing key roles. It's a showdown, yes. One in which both sides have had plenty of time to beef up and prepare. The best of the best are going at it, with arguably the best QB in the business' fate hanging in the balance. Buckle up.