There was no reason or relief from the league when Stacey James, the PR chief, asked for it. Robyn Glaser, the attorney, asked for help from the league and was ignored. Football operations asked for it, by way of the tampering charge against the Jets, and pretty much got that gesture, common in Massachusetts, that one receives after cutting someone off in traffic. The Wells Report itself, 243 pages long without a single critical comment about the league—which is nearly impossible from an “independent” document—didn’t provide a reasonable view for the Patriots. Goodell took two draft picks and cash and returned a four-game suspension, based on text interpretation and air pressure. What on earth made Kraft think that the NFL was going to be reasonable now?
At home, he was being ripped up and down the radio dial, by Patriots supporters and haters alike. The supporters, the fighters, were shocked that the general didn’t have the mind-set to wrestle. The detractors used the opportunity to point out that the retreat was an admission of guilt.
One man who didn’t contribute much to the commentary was Tom Brady. It seemed as if it were ten years ago when he made that remark about being surprised by nothing in the league anymore. He said it in 2013 after losing receivers and watching other teammates traded in a blink. But that was just basic, ground-level NFL stuff.
Brady was nearly thirty-eight years old. Even after all his time spent in the public eye, the public didn’t believe that what they were seeing and hearing was real. He liked to win, so he was going to compete against the Ivy League lawyers just like he would against some middle linebacker from a football factory.
The people who said he took a little off the top were calling him a liar. Those angry and disappointed that he just didn’t “admit it” were saying they didn’t believe him. Some were telling him to move on and accept his fate like Kraft did. That was not going to happen.
“Tom’s integrity is one of the most important things to him,” says Chris Eitzmann, one of Brady’s first roommates with the Patriots. “He’s always been that way.”
The modern sports fan is used to athletes going the other way. They don’t mention integrity all that much, nor do they give long press conferences about conscientiously staying within the lines. It’s ironic that Kraft backed down in San Francisco, where Brady learned to win. The owner could say whatever he wanted, but he wasn’t speaking for Tom Brady. Brady had won on the road before, in his day job, and now he was prepared to take the fight to his opponents. He’d go to their habitat, in Manhattan, whether conference room or, if necessary, courtroom.
The anticipation of and release of Wells’s report had overshadowed nearly every significant football event in the spring and early summer. At least there was the championship celebration itself, a party at Kraft’s house in June. It was one of the few times in the first six months of the year that players could relax and not hear about air pressure and suspensions. Brady and Gisele Bündchen were there, as was pop star Wiz Khalifa, and a video of the quarterback dancing went viral. The biggest party takeaway was the ring, each one loaded with 205 white diamonds.
A week after the party, it was time for business again. Tom Brady arrived at 345 Park Avenue in Manhattan, NFL headquarters, on Tuesday morning, June 23. The last time he saw Roger Goodell, Brady was receiving the Super Bowl MVP trophy, the third one of his career. He was smiling that day, wearing jeans and a cream-colored sweater. But today was about business. He wore a navy suit, white shirt, and dark tie. He arrived in a sedan, surrounded by lawyers armed with files and exhibits.
It was just before nine thirty a.m., and Brady was about to experience how conflict looks and sounds when it’s unleashed at the corporate level. The two dozen people there, mostly lawyers, were adept at white-collar combat. This was officially Brady’s appeals hearing, although the tension in the room didn’t suggest a spirit of flexibility or negotiation. Both sides were entrenched, intent on pointing out the absurdities on the other side of the table.
The art of refusing to listen was perfectly displayed by Lorin Reisner. On this morning, Reisner was a double threat: He was one of the authors of the “independent” Wells Report, as well as the attorney who was doggedly trying to get Brady to incriminate himself on air pressure in footballs. Brady had gladly shared that he was angry with the size and hardness of the footballs in a 2014 win over the Jets. After that game, John Jastremski measured the footballs and found that they were grossly over the legal limit, at 16 PSI. Brady was livid. The officials hadn’t been mindful. From that moment on, he asked the equipment staff to insist to the officials that they know the rules and inflate the ball to a proper level, at 12.5.
But Reisner didn’t focus on the total news of that story. He wanted to talk about Brady’s preference for 12.5, which is a legal number; he ignored the fact that a game ball was at 16, which was well past illegal.
“Now, you have said publically that you like footballs to be inflated to a level of 12.5 PSI, correct?” Reisner asked.
“I said that after the championship game,” Brady replied.
“And so, how long have you known that 12.5 is your preferred level of inflation?”
“After the Jets game,” Brady answered.
“And how did you come to learn that 12.5 is your preferred level of inflation?”
It was obvious that Reisner’s questioning here was following his contributions to the Wells Report. He wasn’t buying the explanations. Brady told Reisner that before Jastremski got to New England, the quarterback learned that the PSI had always been at 12.7 or 12.8. He didn’t know that until the Jets fiasco. But Reisner didn’t want to talk about the Jets fiasco.
“You say you ‘just picked the number.’ Did you pick that number for any particular reason?”
“Ball pressure has been so inconsequential,” Brady answered. “I haven’t even thought about that. I think at the end of the day, the only time I thought about it was after the Jet game, and then after this was brought up, after the championship game. It’s never something that has been on my radar, registered. I never said ‘PSI.’ I don’t think I even knew what that meant until after the championship game. It was never something that even crossed my mind.”
Reisner’s approach was the same. He backed up and sped forward again: “How did you come to pick 12.5 as the number?”
“We looked in the rulebook,” Brady replied.
“How did you come to pick 12.5 as the number for your preferred pressure level for the footballs?”
One of the first statements of the day, from league attorney Daniel Nash, was that this was not a criminal or civil trial. Reisner seemed to think differently. Brady mentioned the Jets game again, the rulebook again. It didn’t matter.
“Did you pick 12.5 because it was toward the lower end or the lower end of the permissible range?”
Brady told the lawyer that they were looking for consistency, and they found a number that they liked in the rulebook. It would stand to reason that he would pick 12.5 when the league had gone as high as 16. It didn’t matter what he said, although his next answer could have and would have been plausible if it had been a different room. But not with this rhetoric. Not with the opponents, like Reisner, that Brady could see along with the ones he couldn’t, owners and GMs around the league who supported everything Team Goodell was doing.
“Is it fair to say that you prefer the footballs inflated to a pressure level at the low end of the range?”
Brady repeated his story about how that Jets game changed his outlook. And then he gave his best answer yet: “Whenever I went to pick the game balls, I never once in fifteen years ever asked what the ball pressure was set at until after the Jet game. So whether it’s 12.5 or 12.6 or 12.7 or 12.8 or 12.9 or 13, all the way up to the Colts game, I still think it’s inconsequential to what the actual feel of a grip of a football would be. So the fact is, there could be a ball that’s set at 12.5 that I could disapprove of, there could be a ball that’s 13 that I could approve of. It all is depending on how the ball feels in my hand
on that particular day. So I don’t think my liking to a football could be a very psychological thing. I just want to know that there is consistency in what I’m playing with.”
Brady’s team had a smart game plan, and it was able to produce some stunning admissions under oath. Ted Wells, for example, after harping on his independence for weeks, acknowledged that NFL executive vice president Jeff Pash read drafts of the Wells Report before its release and even included comments. Wells said he wasn’t sure of the specifics of those comments because they weren’t provided directly to him. They were given to a colleague and, he presumed, the contributions involved “some kind of wordsmithing.” He said that one of his colleagues also prepared a first draft before Wells reviewed it, and that colleague was Reisner. Literally, “independence” became “interdependence” in a New York minute.
“Would your principal colleague on this case be Mr. Lorin Reisner, who is seated over there?” Brady’s attorney Jeffrey Kessler asked Wells.
“Correct,” Wells answered.
Kessler got Wells to acknowledge that he and Reisner were being paid by the NFL for the appeals hearing. And since Pash, a league employee, obviously was as well, it led Kessler to a logical conclusion.
“Just for the record, my observation that the statement that the Paul, Weiss firm is independent is clearly not correct. We now have testimony that they represented the NFL in this proceeding. They viewed the NFL as their client.”
The most confusing and contradictory testimony of the day belonged to Troy Vincent, a former player and the league’s executive vice president of football operations. He said he had never heard of the ideal gas law and that he wasn’t aware that in cold weather, the inflation level of the football would drop. He admitted that he put his signature on two incorrect reports. One, by league employee David Gardi, said the Patriots had a ball measuring at 10.1 PSI. Another suggested that all the Colts’ balls were in compliance, which they weren’t. Vincent also said that the league didn’t record the data of its football tests and that the two pressure gauges it used were inconsistent.
“Is it fair to say, Mr. Vincent, that there was a lot of confusion about what these numbers were, that Mr. Gardi didn’t even know what the numbers were correctly at this time?” Kessler asked.
“Not at all,” replied Vincent.
“You think it was very clear?”
“I think it was clear,” Vincent answered.
Kessler was incredulous. Perhaps some of Vincent’s colleagues were, too. “If it was so clear, do you have any explanation as to how he could have ‘10.1’ written down as the figure and it was not one of the figures?”
“I can’t speak for David,” Vincent said.
At one point, Brady was asked why he spoke to John Jastremski so much in the days after the air-pressure story broke. He said that they were talking about the Super Bowl and, candidly, all the developments of the deflation story. It seemed that the league was expecting a more sinister, less plausible answer than the one Brady gave. It had been a long, hot summer day in the city, and after a few breaks, it finally ended at 8:27 p.m. That had been exactly eleven hours of football and science talk, but even after a half day of talking, there was no resolution.
Anyone who looked at the transcript would have walked away thinking that Brady, at the very least, had a good chance of getting his suspension reduced. But consistent with the way things had gone in the previous six months, there was a chasm between what should have been and what actually was. On Tuesday morning, July 28, ESPN personality Stephen A. Smith had some breaking news. His sources were telling him that the suspension would likely be upheld, in part, because Brady “destroyed his phone.”
Finally, after not seeing the signs for months, Kraft understood what was going on. This was a nasty fight, and there wasn’t enough respect for any type of compromise to be reached. Brady had told Wells in the spring that he never planned to turn over his phone. Wells eventually told him that the phone was not required, just electronic data within a narrow scope. He and his team eventually agreed to that, as well as providing information for every person with whom he had been in contact. That led to a public release of Brady’s e-mails, in which he referenced pool covers, new shoes, his charitable endeavors, and a dinner meeting with the owner of the Vancouver Canucks. He also gave the league contacts for every person with whom he had sent one of his nearly ten thousand text messages that the league wanted to see. All mundane stuff, with no references to PSI. And now Goodell was saying that the new information, the damaging information, was that Brady destroyed a phone that he never planned to give them in the first place?
Worse than that, the league continued to change the script. May’s “generally aware” became “orchestrated and provided rewards” in July. In the beginning, Brady was the quarterback who likely knew that the guys were up to something. Now the league was saying that he was the mastermind and that, although there was no precedent for what they believed Brady had done, Goodell placed it in the realm of using and/or masking performance-enhancing drugs.
After the upheld suspension and clumsy analogy from the commissioner, Kraft did a reversal.
“I first and foremost need to apologize to our fans, because I truly believed what I did in May, given the actual evidence of the situation and the league’s history on discipline matters, would make it much easier for the league to exonerate Tom Brady. Unfortunately, I was wrong. Tom Brady is a person of great integrity, and is a great ambassador of the game, both on and off the field. Yet for reasons that I cannot comprehend, there are those in the league office who are more determined to prove that they were right rather than admit any culpability of their own or take responsibility for the initiation of a process and ensuing investigation that was flawed.
“I have come to the conclusion that this was never about doing what was fair and just. Back in May, I had to make a difficult decision that I now regret. I tried to do what I thought was right; I chose not to take legal action. I wanted to return the focus to football.”
For the Patriots and Brady, the only way they could get the focus to football was to go through the court system first. It was yet another challenge for Brady, in a career of football mountain climbing. When he was eighteen, the obstacle was the depth chart, where he was so far down that they couldn’t sense his presence or hear his voice. A few years later it was being asked to share the space with Drew Henson. He left that Drew and was blocked by another one, Bledsoe. He’d been coasting freely since those days, in his midtwenties, winning everything in his path: fans, games, endorsements, trust.
He’d played with dozens of teammates who’d claimed to love the game so much that they’d play it without compensation. They’d do anything to get on the field. They could never imagine this, suing your league for the chance to play and remaining professional even when the commissioner lies about you and yet calls you the liar. Players couldn’t relate. Maybe only one other guy could. Bill Belichick. A scandal had been placed at his feet eight years ago, and he continued to coach through it. He was called every negative name possible and he led a team to the doorstep of perfection.
Brady had his scandal now. This was being put on him, and not only was he being called a cheater; he was being called a liar. Daily. When he held press conferences, he answered questions of those who said he was dishonest. When he sat in that room with Goodell for half a day, the commissioner walked away and wrote that he wasn’t credible.
A few days away from Brady’s thirty-eighth birthday, he got a gift without even realizing it. He and the Players Association planned to take the NFL to court to fight Goodell’s decision. They filed their suit in Minnesota, where the association had enjoyed historic success, going back to the days when players were granted unrestricted free agency for the first time. But it was a sign of the times that there was a sprint between the league and the union to see who could file first, and the NFL won that race. After Goodell’s decision to uphold the four-game suspension, the league strategic
ally filed in U.S. District Court for the Southern District of New York, because they felt a Manhattan court was more likely to uphold its ruling.
Since the league filed first, a U.S. District judge in Minnesota, Richard Kyle, ordered the union’s case be transferred to New York. It was viewed as a loss for Brady in some corners, but Brady’s lead attorney, Jeffrey Kessler, wasn’t just spouting lawyer-speak when he said, “We are happy in any federal court, which, unlike the arbitration before Goodell, provides a neutral forum.”
The judge was randomly selected, and the one who happened to get the case was Richard Berman. A lifelong New Yorker, Berman had many instances in his career where he had either ruled against the status quo or strongly urged contentious sides to settle their differences so he wouldn’t have to do it for them. He was passionate about defending the powerless and marginalized, and had written extensively on child services and the protection of children.
He was equally critical and complimentary of pop-culture stars, once ruling in favor of singer Mariah Carey in one case and against actor Cameron Douglas, the son of Michael and grandson of Kirk, in another.
It was going to take all Berman’s experience and skill as a peacemaker to strike a conciliatory tone between the union and the league. He asked both sides to “tone down the rhetoric” and attempt to find common ground. He would soon learn that they weren’t interested. The day before the Patriots played a preseason game against the Packers, Brady and Goodell were in court all day. The judge met with both sides separately, trying to convince them to settle. He sensed no movement, so he announced that there were varying strengths to both arguments. But since both sides believed that theirs was the stronger, that approach didn’t work, either.
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