Throughout DeflateGate , NFL Commissioner Roger Goodell and his tin-star investigators have mischaracterized facts, or flat-out omitted them in order to make New England Patriots quarterback Tom Brady look guilty. But it’s one thing for the NFL to perpetuate falsehoods in its own bubble world, and quite another to do it in an actual court of law. That’s what happened before the Second Circuit appeals panel last week when NFL attorney Paul Clement improperly repeated untruths, and it should serve as evidence to those judges that the Brady arbitration is dishonest and should be tossed.
Lawyers are officers of the court and cannot make false statements of fact, under pain of sanctions. Clement is one of the top appellate lawyers in the land, a former solicitor general, so he knows better than anyone that he owes the court candor. He is professionally obliged to admit that he was (surely unwittingly) sucked through the looking glass into the deceitful universe of Goodell’s NFL, in which the commissioner habitually makes up facts in disciplinary cases to suit himself and consolidate his powers.
Ever since last week’s oral arguments late Thursday, there has been a growing chorus among legal observers of the case that Clement made factual misstatements. New York Law School professor Robert Blecker, who filed an amicus brief, noticed it, and so did Houston attorney and legal blogger Stephanie Stradley, who tweeted, “Candor to the court means you are not to mislead,” and noted that judges can sanction if they are angry. The usual process is to correct the record with a letter to the court once he’s alerted to his misstatements; if Clement does not, Blecker intends to.
The most noticeable instance was Clement’s parroting of an outrageous falsehood Goodell told when he issued Brady’s four-game suspension. Unaware that the arbitration transcript would become public, Goodell said that Brady lied about conversations he had with assistant equipment manager John Jastremski the day after the AFC championship game. According to Goodell, Brady’s version was that they were strictly about preparing game balls for the Super Bowl in 2015. The commissioner used this as an instance of obstruction and a pretext for socking him with the suspension.
Clement repeated this crock to the court. “To say all of that was being done to prepare the Super Bowl balls, I think the commissioner found that to simply not be a credible explanation to the conduct,” Clement said during oral arguments.
This is not factual. Here is Brady’s actual arbitration testimony. Asked what he and Jastremski had talked about, Brady replied they discussed the Super Bowl, and also “the allegations we were facing.” He expanded:
“I think trying to figure out what happened was certainly my concern and trying to figure out, you know, what could be — possibly could have happened to those balls.”
Brady did not lie on this point; he wasn’t even evasive. The person not credible here is the commissioner, and Clement must clarify that to judges Robert Katzmann, Denny Chin and Barrington Parker.
Clement perpetuated another untruth in the written brief he submitted to the court. He said that Brady’s counsel was present for “many of the interviews” during the league’s investigation. In fact, Brady’s counsel was only present for one interview: Brady’s.
Clement’s brief also states that Patriots locker room attendant Jim McNally repeatedly referred to himself as the “deflator” in text messages “throughout” the 2014 season. This too is grossly untrue.
In fact, McNally only called himself the “deflator” in a single text message — months earlier in the offseason. The text was written in May 2014 long before the season began, in no way referred to games or footballs, and was so irrelevant and inconspicuous that league investigator Ted Wells never even asked McNally about it. Clement is ethically required to correct this, too.
The entire subject of the Second Circuit appeal is whether Goodell and the NFL treated Brady honestly and reasonably in arbitration. Obviously, they did not.
Arbitration is a rough form of justice. By definition it’s meant to be more informal and expeditious, and to keep small complaints from cluttering up the courts. The deeply experienced judges of the Second Circuit have far more important matters to decide than the petty scope of Goodell’s arbitrator powers under collective bargaining. As Judge Parker remarked, “This is arbitration. It’s casual. It’s sometimes even down and dirty.”
But Parker probably regrets the last part of that sentence. One of the very narrow grounds on which judges must overturn arbitration is if the process was in fact “dirty.” Judges intervene if there is evident dishonesty, partiality, bias or fraud.
This case was dishonest from the start. It was dishonest when the NFL leaked false numbers about the deflation level of the Patriots’ balls and never corrected the record. It was dishonest when the league employed Exponent, a junk science firm with a record of bending research on second-hand smoke and asbestos to suit clients. It was dishonest when the Wells Report published Exponent’s faulty measurements and omitted clear evidence that the footballs in question were most likely deflated by the cold weather and rain. It was dishonest when the NFL ignored an outcry from the mainstream scientific community — including engineers at Carnegie Mellon, the University of Chicago, Rockefeller University and MIT — that Exponent’s shoddy methods didn’t add up. MIT engineer John Leonard has demonstrated that the Indianapolis Colts’ balls were as much out of range as the Patriots’ and calls it “an open and shut case” that there was no tampering.
No matter how “down and dirty” arbitration is, no employer or arbiter can be allowed to manufacture evidence and make up false testimony against an employee. While arbitration is necessarily more “casual” than federal law, the people who submit to it shouldn’t have to surrender their American citizenship and enter a dictator’s netherworld, either.
This whole process is smeared with dirt.
The NFL must not be permitted to misstate facts to a court with impunity. The league’s own lawyer Dan Nash was forced to admit in the last round in District Court that there probably shouldn’t have been an arbitration in the first place. Judge Richard Berman asked Nash, “Is there any direct evidence linking Mr. Brady to tampering?”
“No, there is not such direct evidence,” Nash replied.
An excellent example of candor before the court — and in this case, a rare one.
Somewhere underneath all of this mess is the fundamental fact that there is no evidence the balls were ever deflated. None. Every question about process must ultimately go to that. Over and over again, other courts have found Goodell not credible in disciplinary cases, because he takes rash actions and then is too vain to admit a mistake. The Second Circuit should be aware that he’s not credible in this instance either. Clement is professionally obligated to correct the record on the misstatements Goodell led him into. He owes the court that candor.
For more by Sally Jenkins, visit washingtonpost.com/jenkins.