Tom Brady’s defense team may have found its ace in the hole.
After federal judge Richard Berman hammered the NFL on several points in last Wednesday’s hearing, some experts are calling for a Brady victory based on one element: The NFL’s refusal to make executive vice president Jeff Pash, who edited the Wells Report and at one point was called its co-lead investigator, available for questioning.
“The Pash issue is the one issue that’s the clear winner for Brady,’’ said Daniel Wallach, a federal attorney and expert in sports law.
Much has been made of the judge’s skepticism over the NFL’s evidence against Brady, but it’s more or less incidental to the case. In an arbitration appeal like this one, whether the judge ultimately vacates the ruling, upholds it, or remands it back for another round of arbitration is based not on the facts used by the arbitrator, but whether they followed the proper process in arriving at their ruling.
This process has several components, one of which is that the arbitration be “fundamentally fair.’’ Among other things, this means the defense must be able to summon and question witnesses whose testimony is relevant to this case.
The NFL argued in court last Wednesday and again in its letter to the judge Monday that it acted fairly in not making Pash available. Jeff Kessler and the NFLPA have argued the opposite.
According to Wallach, portions of last week’s hearing transcript make clear Judge Berman’s feelings on the matter:
THE COURT: He edited the Wells Report. Nobody else was given the authority to edit the Wells Report. So that’s a big deal. He is a lawyer, right? He’s a very senior executive. So he’s the co-lead on the investigation. You allow one person, Mr. Wells, to be cross-examined, I don’t understand what the thinking was behind not allowing Mr. Pash.
MR. NASH: Not allowing?
THE COURT: To be a witness.
MR. NASH: Because he was not a witness. The judgment was made that he was not a witness to any relevant facts underlying the decision.
The NFL also denied the NFLPA’s request for access to Ted Wells’ notes, which is a second component of its fairness argument.
In the league’s defense, Nash said Goodell told the NFLPA it could renew its motion if it found during the hearing that Pash was a “relevant witness,’’ and that any testimony would have been “cumulative,’’ meaning his and Ted Wells’ testimony would have been redundant.
The judge scrutinizes this argument:
THE COURT: And the Commissioner also said Mr. Pash’s testimony would be cumulative.
MR. NASH: Yes.
THE COURT: How do you know? Cumulative of what? Unless you know what he’s going to testify to, how would you know it’s cumulative?
MR. NASH: Because we argued to the Commissioner in response to that that Mr. Pash was not substantially involved. He was not a witness to any of the events at the AFC Championship game. It was plainly sufficient, in the Commissioner’s judgment, if Mr. Wells, who is the lead investigator, is going to be compelled to testify —
THE COURT: He’s the co-lead. Mr. Pash’s name is a co-lead.
MR. NASH: Your Honor, that’s true only if you accept their argument about how to interpret a press release in February.
THE COURT: It’s not my press release, so I didn’t write it, so you all wrote it.
The fairness argument may be Brady’s strongest by Wallach’s reading of the transcript, but it’s not his only good one.
Dan Werly, a Georgia-based sports litigator who has been following the case, says there’s a lot of teeth to the so-called “notice’’ argument, which says the punishment given was out of line with precedent and written rules, including one – the Integrity of the Game Certification – that wasn’t even distributed to players.
That said, Werly is less convinced of a Brady win than Wallach.
“They’re both strong arguments for the NFLPA at this point,’’ Werly said. “I think they have better than a coin flip chance of winning on those arguments.’’
Some have theorized Berman’s heavy criticism of the NFL is less representative of his thoughts than it is his playing devil’s advocate – that he’s hammering the more uncooperative party of the two (the NFL, per the theory) to undermine its confidence and prompt a settlement.
Wallach dismisses this argument, saying Berman’s criticisms have been so blistering if the case were a 15-round fight, it would have been stopped in the second round.
“I have to believe the judge means what he says, and would look foolish to make those statements on the record, that were very emphatic statements, and do a 180,’’ Wallach said.
All that said, the fairness argument is not enough to justify Berman’s outright vacating the award; instead, it would simply mean remanding the case back to arbitration with a mandate that Pash be made available. In such a situation, Goodell could again appoint himself arbitrator and run another “kangaroo court,’’ per Berman. Thus Wallach believes Berman’s decision will come in tandem with a finding in Brady’s favor on the notice argument or the argument Goodell was an “evidently partial,’’ or biased, arbitrator. The former would be ground for vacatur, and the latter would see a second round of arbitration before an objective arbitrator.
“What I see here is a Brady victory centered around the exclusion of Pash and the investigative notes, plus either a bias finding or no notice,’’ Wallach said. “The “no notice’’ issue would create an outright victory for Brady without having to go through the facade of a new arbitration before the same commissioner.’’