Tom Brady, with nothing to lose, should take NFL to court

boston globe


It’s time for Tom Brady to get tough. Brady and the NFL Players Association need to take Roger Goodell and the league to court.

It’s time to dive in headfirst and go for it. They have nothing to lose.

Goodell on Tuesday upheld Brady’s four-game suspension for his role in the Deflategate saga, five weeks after Brady appealed the punishment to Goodell at the NFL’s Manhattan headquarters. And in reaffirming his own punishment, Goodell dropped a bombshell — that Brady ordered his assistant to destroy his cellphone on March 6, the day Brady was set to meet with investigator Ted Wells, even though Brady knew investigators had requested to review his text messages and other electronic communications.

It’s a terrible look for Brady, who will have a hard time proving his innocence in the court of public opinion. Wells and the NFL didn’t even know about the destroyed cellphone until June 18, five days before Brady’s appeal to Goodell.

But Brady doesn’t need to win in the court of public opinion anymore. He needs to win in federal court, where the NFLPA is ready to file a lawsuit on his behalf.

The NFLPA all but confirmed Tuesday evening that Brady will be filing a lawsuit, stating that “the NFLPA will appeal this outrageous decision on behalf of Tom Brady.” Since Brady has exhausted his appeals with the NFL, his only other remedy is through federal court.

Brady likely will face an uphill battle to win his lawsuit, which will focus on flaws in the NFL’s discipline and appeals processes, not necessarily if the footballs were actually deflated during the AFC Championship game back in January.

It won’t be easy for Brady to claim that the NFL’s process was flawed when he knowingly destroyed his cellphone on the morning he was supposed to meet with Wells, ostensibly obstructing the NFL’s investigative process.

And federal courts are often loathe to step in and handle matters already decided by arbitrators. Article 46 of the NFL’s collective bargaining agreement permits Goodell to serve as the appeals officer for matters of discipline, and the NFLPA signed off on it.

The NFL tried to beat the union to the punch on Tuesday, filing a lawsuit against the NFLPA in New York seeking confirmation of the decision against Brady. It was a preemptive strike by the NFL, which knows the NFLPA likes to file lawsuits in Minnesota, where it has had a decent amount of success in fighting the league over the years.

But the NFLPA is reportedly set to file a lawsuit in Minneapolis, anyway, and all but outlined its legal strategy in its press release.

The NFLPA will argue that: The NFL did not have a policy on its books that pertained to player discipline for a matter like this (only a team penalty that starts at $25,000); that the NFL made up its standard of “general awareness,” which does not appear anywhere in the CBA, to punish Brady; that the NFL had no procedures in place until this week to test the footballs; that Brady’s four-game punishment and $1.8 million in lost wages far exceed precedent (Brett Favre was given a $50,000 fine for not cooperating, and the Panthers and Vikings were let off with a warning last December); and that the appeals process was inherently stacked against Brady, with Goodell lacking impartiality as the appeals officer.

Brady’s agent, Don Yee, outlined a similar sentiment in his own statement.

“The appeal process was a sham, resulting in the commissioner rubber-stamping his own decision,” Yee said. “The commissioner’s decision and discipline has no precedent in all of NFL history . . . The decision is wrong and has no basis, and it diminishes the integrity of the game.”

At this point, it’s hard to say Brady didn’t do anything. The destruction of the cellphone is fairly damning. But that doesn’t mean the NFL’s process was fair, and with the league holding firm on a four-game suspension, I don’t see many reasons for Brady not to go through with a lawsuit.

Once he files a lawsuit, Brady can ask the judge for an injunction to stay the suspension until the lawsuit is heard. This will allow Brady to play in the regular season until the case is decided. He could play in the opening kickoff game in six weeks, and since lawsuits take so long to sort out, Brady could potentially play the entire 2015 season while the matter is tied up in court. Stretching this thing out as long as possible comes right out of Goodell’s playbook and will definitely be part of Brady’s strategy.

The only downside to filing a lawsuit would be if Brady loses and is forced to serve the four-game suspension late in the season, while the Patriots are chasing a playoff spot, instead of early in the season.

But at this point, given how badly Brady feels he is being mistreated, he might as well fight this thing to the end. Take Goodell to court and shine a big microscope on the NFL’s appeals and discipline processes. It’s gotten bigger than the fate of the Patriots’ 2015 season. Sorry, Bill Belichick.

The NFL will argue, possibly convincingly, that Brady not only didn’t cooperate with the investigation, he actively hindered it by destroying his cellphone. It’s true, Wells didn’t get to the bottom of Deflategate — potentially because Brady destroyed his phone.

But who says the NFL has an absolute right to view the electronic communications on Brady’s personal cellphone? This is not a criminal proceeding, and Brady didn’t destroy his phone in the course of a lawsuit, either.

Owner Robert Kraft promised full cooperation from the Patriots, and NFL’s rules state that “failure to cooperate in an investigation shall be considered conduct detrimental to the league and will subject the offending club and responsible individual(s) to appropriate discipline.”

But it seems dubious that Kraft or the NFL could force Brady to turn over his private property.

“Was it smart for Brady to destroy the phone? Absolutely not,” said Jason Bonk, chair of the sports law practice at New York firm Cozen O’Connor. “But Brady’s legal team’s job is to put that in context — the fact of his destroying the phone, and his right to privacy, in context, and sort of relate it back to the facts and the situation and the questionable nature in which the NFL handled the initial investigation and suspension.”

The NFLPA knew during settlement talks of the past week that Brady had destroyed his phone. And it willingly walked away from the negotiating table anyway, ready to fight this in court.

Now it’s time for Brady to follow through. He doesn’t have much to lose.