UPDATE: Brady ban upheld as NFL seeks order affirming decision

The National Football League is poised for a legal battle with one of its most popular and successful stars after Commissioner Roger Goodell upheld the four-game suspension of New England Patriots quarterback Tom Brady.

Goodell on Tuesday rejected Brady’s appeal of a May discipline for his involvement in the Patriots’ deflated-ball controversy. In making his ruling, Goodell noted the reigning Super Bowl Most Valuable Player had his personal mobile phone destroyed just before meeting with investigators, an act the commissioner said was an effort to conceal potentially relevant evidence and to undermine the probe.

The NFL Players Association, which described the decision as “outrageous,” said it will file an appeal on behalf of Brady, who stands to lose about $1.75 million in salary during his ban. The NFL’s Management Council sued the union first, asking a court to confirm Goodell was within his rights to uphold the discipline.

“The NFLPA always appeals these big decisions, and we’ll see what happens,” said former Green Bay Packers executive Andrew Brandt, who is now an analyst for ESPN. “But it’s an uphill climb for two reasons. First, judges are hesitant to overrule internal systems like labor law. Number two, this is a system they agreed to. The commissioner is judge, jury and executioner.”

Brady’s ban for conduct detrimental to the integrity of the league was handed down May 11, five days after investigators commissioned by the league concluded that the two-time NFL MVP was probably “at least generally aware” that two Patriots staffers deflated game balls to below the league’s minimum air pressure before the conference championship game against the Indianapolis Colts. The Patriots were fined $1 million and stripped of two draft picks, which team owner Robert Kraft decided not to challenge though he said he disagreed with the punishment.

Goodell upheld Brady’s ban on Tuesday, almost five weeks after the Patriots’ record-setting quarterback had a 10-hour hearing on June 23 at the NFL’s offices in New York. Goodell in May rejected a request by the players’ union that he remove himself from hearing the appeal in favor of an independent arbitrator.

Agent’s reaction

Both the Patriots and Brady’s agent, Don Yee, blasted Goodell’s decision.

The Patriots said they couldn’t comprehend the league’s position and maintained unequivocal support for Brady, while Yee said the appeal process was “thoroughly lacking in procedural fairness” and that the NFL had no evidence that Brady or the Patriots did anything wrong.

With its preemptive legal action, the NFL is seeking to ensure jurisdiction in New York rather than Minneapolis, where U.S. District Judge David Doty has made several rulings in the union’s favor, Brandt said.

“There is potential for considerable litigation here,” said Mark Conrad, a law professor and director of the sports-business program at Fordham University in New York.

Goodell focused on new information disclosed by Brady in making his ruling on Tuesday, specifically mentioning Brady had his phone destroyed before meeting with investigators. The NFL said in a statement that it didn’t become aware of that until June 18, almost four months after the investigators had first sought electronic information from Brady.

“Rather than simply failing to cooperate, Mr. Brady made a deliberate effort to ensure that investigators would never have access to information that he had been asked to produce,” Goodell said.

The NFL said Brady’s conduct suggested that information from his phone, if available, would further demonstrate his “direct knowledge of an involvement with the scheme” to tamper with game balls. Those findings indisputably constitute conduct detrimental to the integrity of, and public confidence in, the game of professional football, Goodell added.

Backup quarterback

The Patriots, whose veteran players report for the start of training camp on Wednesday, open the regular season with a Thursday night game against the Pittsburgh Steelers on Sept. 10 in Foxborough, Massachusetts. The ban would also force Brady to sit out contests against the Buffalo Bills, Jacksonville Jaguars and Dallas Cowboys, leaving backup Jimmy Garoppolo—a second- round draft pick in 2014—as the starter.

Brady is married to supermodel Gisele Bundchen and is one of the most high-profile players in the most popular U.S. sport, having led the Patriots to four Super Bowl titles. The suspension would make him the first starting quarterback from a reigning Super Bowl-winning team to miss the ensuing season-opening game since 2006, when Ben Roethlisberger of the Steelers had an emergency appendectomy.

Wells report

A three-month investigation headed by New York attorney Ted Wells concluded it was “more probable than not” that Jim McNally, an officials’ locker room attendant for New England, and John Jastremski, an equipment assistant, released air from game balls after they were examined by officials prior to a 38-point rout of the Colts that sent the Patriots to the Super Bowl. The report said it was unlikely the two staffers would “unilaterally engage in such conduct in the absence of Brady’s awareness and consent.”

The NFL said Brady, the day before meeting with Wells, directed that the mobile phone he used for the prior four months be destroyed. “He did so even though he was aware that the investigators had requested access to text messages and other electronic information that had been stored on that phone,” the NFL said in its appeal decision. “‎During the four months that the cell phone was in use, Brady had exchanged nearly 10,000 text messages, none of which can now be retrieved from that device.”

Goodell said while he recognizes the need for consistency in NFL discipline, there are no directly comparable incidents of detrimental conduct.

Goodell said the four-game ban is consistent with the discipline given to Cleveland Browns General Manager Ray Farmer in March for detrimental conduct that affects the integrity of the game. In reinforcing his decision, Goodell also noted the one-year suspension for New Orleans Saints coach Sean Payton and the six-game ban for assistant coach Joe Vitt imposed for trying to cover up the team’s pay-for-performance bounty program.

“Here we have a player’s uncoerced participation in a scheme to violate a competitive rule that goes to the integrity of the game,” Goodell wrote. “Unlike any other conduct detrimental proceeding of which I am aware, and certainly unlike any cited by either party, this scheme involved undermining efforts by game officials to ensure compliance with league rules.”

Brady’s agent said Goodell’s decision has “no precedent in all of NFL history” and alters the competitive balance of the league.

“The decision is wrong and has no basis,” Yee said. “And it diminishes the integrity of the game.”

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