The recent arbitration appeal that Tom Brady successfully waged in the United States District Court in New York (and which the NFL has appealed) was decided on very narrow grounds. US District Court Judge Richard Berman found that NFL Commissioner Roger Goodell violated the 2011 NFL Collective Bargaining Agreement, as well as federal law, by dispensing his own brand of industrial justice and Judge Berman vacated Goodell’s suspension of Brady just prior to the start of the 2015 season. Judge Berman did not go anywhere near the underlying facts that Goodell cited in support of his arbitration decision, however, because judges are not permitted to do so under federal arbitration law. As a result of this limitation on a judge’s authority, Brady was left with a result which, if the appellate courts uphold it, may seem unsatisfying to many because it did not address that very questionable evidence that Goodell cobbled together to impugn Brady’s character. The big question for many, if Judge Berman’s decision stands, is, “Will that procedural win be enough of a victory for Tom Brady?”.
If it is not, there is another legal avenue available to Tom Brady by which a balanced inquiry can be made into the so-called “Deflategate” evidence that will be truly independent in nature: a lawsuit for defamation of character. It is likely that the focus of such a suit would be the “Wells Report” which was commissioned by Goodell to investigate the charges Ordinarily, the defamation of a private individual would require that the individual prove by a preponderance of the evidence (more likely than not) that the defendant published false and defamatory information without regard for the truthfulness of the information published.
But because Brady is a public figure, however, he must also prove that the defendant(s) published the false and defamatory material with “actual malice”— that is, with knowledge that it was false or with reckless disregard of whether it was false or not. The law also puts a heightened burden on a public figure who brings a defamation suit: the element of malice must be proven by clear and convincing evidence. That is why defamation lawsuits filed by public figures are so difficult to win – difficult but certainly not impossible.
What would a Brady defamation lawsuit look like?
In a defamation case, the tables would be turned on Roger Goodell during the discovery phase. Unlike the limited discovery available to Brady in the arbitration case, in a defamation case, the sky would be the limit under the state and federal rules of civil procedure, which are very liberal when it comes to what must be produced in discovery. Goodell’s correspondence, emails and phone records – Goodell‘s own cell phone records and cell phone itself – would be examined in great detail, as would those of the other members of the NFL front office. Anyone who brought influence to bear over the Deflategate investigation would be subject to examination, including other NFL owners, coaches, general managers and officiating staff. Certainly, the Indianapolis Colts and the Baltimore Ravens would be scrutinized. All of Ted Wells’ correspondence, emails and phone records would be a subject of great interest.
Of particular interest to a jury would be how Ted Wells ignored Referee Walt Anderson’s “best recollection” that, in his AFC Championship pre-game testing, he used the air pressure gauge that showed that there was no tampering in his halftime measurements, because most of the footballs fell within the 11.52 to 11.32 PSI range at halftime, as predicted by the Ideal Gas Law. Their entire case against Brady is premised on this key point. If the air in the footballs measured properly, then nothing anyone said in a text matters. It would be for a jury to determine whether Wells’ badgering of Anderson to concede that it was “certainly possible” that he used a different gauge – one that was calibrated to produce lower readings (“the non-logo gauge”) – constituted just the sort of malice Brady needs to prove defamation. It would be for a jury to determine whether Wells’ conclusion that that Anderson used the “non-logo gauge” instead of the gauge that comported with Anderson’s “best recollection” constituted just the sort of malice Brady needs to prove defamation as would Wells’ decision to adopt the “non-logo” gauge’s halftime readings rather than the gauge that Anderson remembered using to test the balls before the game.
A lawsuit would delve into the business of how much testing the NFL ever performed on the air pressure in footballs in its 95-year history prior to the 2015 AFC Championship game. We already know the answer to that because there is no reference to any such testing in the Wells’ report. (Indeed, the NFL has just this current season begun to compile such data). How Wells and Goodell got from a non-existent database of football air pressure knowledge to the tampering conclusion they drew is one that is ripe for inquiry. That includes the selection of the scientific expert upon whom they relied when there are so many other authoritative experts who have persuasively challenged Wells’ expert’s findings.
The very motivation for the tampering charges themselves would also be examined. This could include an inquiry into the reported dissatisfaction by some NFL owners that the Patriots and Coach Bill Belichick were not punished severely enough by Goodell in the so-called “Spy-Gate” matter in 2007. Did Goodell see the Deflategate episode as an opportunity to prove to the other NFL owners that he is not in Robert Kraft’s back pocket? And did he turn a blind eye to the utter lack of physical evidence against Tom Brady in the Deflategate case in his zeal to prove his toughness to the other NFL owners?
Speaking of the lack of evidence against Brady, did the pursuit of disciplinary charges against Tom Brady when the NFL destroyed the critical physical evidence that would have disproven the charges against him constitute just the sort of malice that Brady needs to prove in a defamation case against Goodell? This is yet another area for inquiry in a defamation lawsuit.
Lastly, of inestimable value to Brady as a plaintiff is that he would have the choice of forum for the trial of the lawsuit. That would be in Boston – either in the state court or federal court – and Boston would be where the jury would be drawn from. In Boston, Tom Brady occupies a status that no public figure other than Bobby Orr has ever had in the eyes of the public. That would be the ultimate “competitive advantage”.
These are just a few of the reasons why Brady should bring a defamation case against the NFL. And at the very least, Brady could make Roger Goodell’s life quite miserable.
Why Brady may not sue for Defamation?
Without going into the varied defenses that the NFL would raise in a defamation case, there is a big reason why Tom Brady may not have the appetite for such a lawsuit: his personal privacy.
When a person brings a defamation lawsuit, that person opens up his own life to public scrutiny. What he says is being defamed is his character and reputation in the community. The law allows the defamation defendant to present evidence of the plaintiff’s bad character in mitigation of the damages caused. The rules of discovery operate as a 2-edged sword here. Where the rules of civil procedure allow Brady to make life very uncomfortable for the NFL, Roger Goodell and Ted Wells, the reverse is also true. The rules of civil procedure permit the discovery of facts about Brady that may even be inadmissible at trial so long as the inquiry is reasonably calculated to lead to the discovery of evidence that is admissible. As noted above, the courts construe the rules of discovery very liberally. So if Tom Brady has any skeletons in his own closet, he can be assured that the NFL will go after them during the discovery process. That prospect alone may persuade Brady not to bring such a suit.
As one of the wealthiest players in the game, Brady certainly doesn’t need the money a defamation judgment would yield. So his desire for vindication and even revenge would have to outweigh his reticence over having every aspect of his private life opened up to public scrutiny. Only Tom Brady can measure the relative benefits versus the downside of a suit for defamation of character. No doubt, it hasn’t escaped his notice that the NFL Management Council and Roger Goodell have ratcheted up their personal and mean-spirited attacks on him in each successive court filing during the appeals process and that may influence his ultimate decision.
The good news is that, under the applicable statute of limitations, Brady has at least until the first half of 2018 before he has to fish or cut bait on such an undertaking.
About the Author: James M. Lynch is a Massachusetts lawyer for Lynch & Owens, located in Hingham, Massachusetts, whose practice areas include DUI defense, divorce and personal injury.
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