Tom Brady's appeal: 3 things the QB must answer, explain before Goodell

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·NFL columnist
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When this whole deflation mess started in January, New England Patriots star Tom Brady called it "ridiculous." Five months later, he has another chance to prove that.

That's essentially what Tuesday is all about, when Brady will arrive in New York and settle into a room with a herd of lawyers and NFL commissioner Roger Goodell. Suspended four games and standing to lose $1.88 million, Brady will have his opportunity to mount a vigorous appeal. On what exactly does Brady's future hang? It's chiefly going to be a high-stakes edition of show-and-tell for the quarterback, according to multiple sources familiar with the case.

Tom Brady will appeal his four-game ban in front of Roger Goodell starting on Tuesday. (AP)
Tom Brady will appeal his four-game ban in front of Roger Goodell starting on Tuesday. (AP)

Show the NFL the communication records that it previously requested. Tell the NFL about his relationship with Patriots equipment assistant John Jastremski, and why it suddenly became so intense after the AFC championship game. There will be many points that Brady and the NFL will argue, but the consensus among sources is that these two will be at the top of the agenda.

All of them, without question, will circle a central theme: Brady has the opportunity to take significant steps to exonerate himself this week, both in words and actions. Exactly how far he is willing to go with both is likely to determine when he'll play his next NFL game.

It stands to reason that if Brady meets the NFL's standard of cooperation this week and nothing is found to further link him to deflating footballs, the league will have lost a significant portion of bedrock in its case against him. In essence, Goodell will have to lean entirely on Ted Wells' report, which has – after countless autopsies – fallen short of evidence linking Brady to the manipulation of footballs, let alone to knowledge of whether or not illegal manipulation was taking place.

Basically, the NFL would have to acknowledge that it is maintaining a high-profile suspension based on dot-connecting and assumption, and not even a single interview or piece of evidence that directly implicates Brady. But again, for that to be a reality, it would require Brady taking a soft-toss out of Goodell's wheelhouse: the fact that he hasn't fully cooperated.

With that in mind, sources say the crux of the appeal will be argued on a handful of key points. Among the most important …

Brady's failure to comply with records requests

Of all the points that will be attacked, this one is going to be the most difficult for Brady to get around. As it stands, a league source told Yahoo Sports that Brady initially believed he had fully satisfied requests for information when he sat for an extended interview. The source added that after speaking with investigators, Brady was never specifically informed that his interview alone was not enough. Nor was he advised, the source said, that a failure to turn over requested material would be seen as an obstruction significantly impacting penalties.

That latter point – significant obstruction – has crystalized as Brady's biggest problem since the penalties were handed down, and was accentuated most recently by Goodell at the league's San Francisco meetings.

"I think we were very clear in the letter [to Brady from the league], that the non-cooperation was a factor in the discipline, absolutely," Goodell said. "… We do expect to have that [cooperation] in investigations. That's an important part of it. And when there isn't full cooperation, that is certainly part of the discipline."

Goodell added at those meetings that Brady could still impact his sanctions by bringing forth new evidence in an effort to cooperate. But the specifics of how Brady can do that at this stage are unknown. It's unlikely that simply providing a stack of text messages or emails from specific dates would resolve the issue.

(AP)
(AP)

Why?

It is believed that investigators would seek one of two things: Either communications records directly from the source (such as Brady's cellular provider) or that someone with forensic expertise be allowed to extract the requested communications directly from Brady's account. Because phones and other communications can be scrubbed of material, only one of those two routes would be a "tamper-free" disclosure. All of which means full cooperation likely can't be achieved with Brady's lawyers or the NFLPA simply handing over more information.

That leaves three routes which could unfold Tuesday:

1) Brady and his attorneys could agree to an examination of his communications on specific dates. There is a possibility that this could have already taken place prior to the appeal hearing. But if the examination hasn't already occurred, that means any agreement on Tuesday would then trigger either a forensic expert or a communications provider being tasked to gather records. Because gathering records now would delay the appeals process, it's likely Brady and his lawyers have already made a decision on this and taken the according steps heading into Tuesday.

2) Brady and his attorneys could refuse access to his communication accounts, arguing that investigators already have the applicable materials turned over by the Patriots and team employees Jastremski and Jim McNally. Brady's attorneys could argue that since investigators have received the Jastremski and McNally communications, they already have whatever is relevant, and additional requests upon Brady would constitute a "fishing expedition" by the NFL.

3) Brady and his attorneys could attack the league's "obstructing an investigation" penalties based on previous precedent. This would likely be done by pointing to the league's handling of Brett Favre when he refused to cooperate in the NFL's probe into sexual harassment allegations. Favre refused to comply with the league's demands for communication information when it was investigating allegations brought forth by former New York Jets employee Jenn Sterger. In that case, Favre was ultimately fined $50,000 for failing to cooperate. Attorneys could argue that the NFL's penalties for Brady's refusal to cooperate (a four-game suspension and $1.88 million fine in salary) are excessive when compared with the Favre case.

Brady's calls and texts with Jastremski

Even if Brady produces his communications and they don't implicate him, a source said he still has a key hurdle: Explaining his sudden spate of contact with Jastremski (which the Wells report framed as unusual). Specifically, the NFL will ask Brady to explain at least three important points:

• Why, after not exchanging calls or texts in the previous six months, did Brady speak to Jastremski for 55 minutes and 49 seconds and text him several times in the days following the AFC championship game? One league source said Brady's attorneys have a fairly easy defense of this one: First, Jastremski engaged Brady initially, sending a text early the morning after the AFC title game asking the quarterback to call him. Secondly, it would be wholly unrealistic to expect that Brady wouldn't speak with Jastremski, since the deflation allegations impact them both directly. In essence, Brady's defense is that he spoke to Jastremski to determine what exactly happened and if there was indeed a problem with the footballs.

• How does Brady explain the content of his texts with Jastremski? Specifically:

(AP)
(AP)

What did he mean when he asked Jastremski if he was "good"?

How had he determined that Jastremski hadn't done "anything wrong"?

Why did Jastremski tip Brady off that head equipment manager Dave Schoenfeld would be "picking [Brady's] brain" about it?

What did Brady think Jastremski meant when he texted Schoenfeld "knows it's unrealistic you did it yourself," and what did the word "it" refer to in that text?

Why did Brady use the word "still" when he texted Jastremski, "We are still good"?

Brady's meeting with Jastremski in the "QB room"

This point is similar to the last section, in that even if Brady complies with the communications request, he will have to explain why he had spent what Wells' report determined was an unusual amount of time with Jastremski. On this point, it will be a question about why Brady chose to meet with Jastremski in the privacy of the "QB room" – something which, according to Jastremski, had not happened in the prior 14 years of his employ with the team.

Brady will also be expected to explain what was discussed in what Jastremski described to investigators as Brady's "quasi-office". Again, a source describes this as another layup for the Brady defense: that the QB had a busy schedule preparing for the Super Bowl and asked for the private meeting in favor of efficiency.

What is key about that trio of questions is that one puts the burden of proof on Brady (turning over his communications), while the other two place some burden on Goodell to explain why he believes Brady and Jastresmki are lying about the reason for the uptick in their communication. From the standpoint of public relations, this has the potential to paint Goodell and the NFL into a tricky corner.

On one hand, if Brady refuses to turn over communications, the NFL has an extremely well-anchored position: obstruction. Goodell could say Brady is continuing to obstruct despite being allowed a second chance to cooperate, and the league is punishing him for this direct and irrefutable act. At that stage, Goodell would only need to argue the point of why the league has levied a more severe penalty than it did for Favre. And the NFL certainly has a lot of collectively-bargained leeway to explain why Brady's obstruction was more damaging to the NFL than that of Favre.

But what if Brady turns over his communications, and no link to deflation is found?

This is where things could get muddled. If Brady turns over his communications and nothing implicates him in the deflation of footballs, then the league must wage a war based on dot-connecting. In this scenario, the league must then lean completely on what it believes circumstantial evidence says, not what it proves.

Consider that potential reality for a moment. Tom Brady fully cooperates and nothing damaging is discovered in his communications. That effectively kicks out a major pylon of the NFL's penalty. In Goodell's own words, "non-cooperation was a factor in the discipline." So if you remove non-cooperation as a factor, what other factors are left?

This is where the weight of penalties suddenly shift to a different pylon: the dot-connecting in Wells' report. To phrases like "at least generally aware" and "more probable than not" and "likely." All of those phrases mean this: In the best estimation of Wells' report, Brady is guilty.

That's it. If Brady fully cooperates and isn't implicated through his own words, then it comes down to where the evidence points, and nothing else. And strictly from a public relations standpoint, that's a remarkably low standard when compared against the standard Brady had to meet.

All of which brings us to this: If Brady turns over his communications and if they don't implicate him, then the NFL will be basically saying: Tom Brady met our high standard of cooperation. While no further evidence was found, we still do not believe he has exonerated himself. So he will remain suspended in some fashion based on a lower bar of estimation and circumstantial evidence met by our investigators. While we could not prove Brady's involvement beyond a doubt, we do not believe he proved his innocence beyond a doubt. Our standard wins. His loses.

That's a tough reality.

Of course, Brady still has to meet the league's standard. He still has to satisfy the NFL's need to see his communications. There is no more ambiguity about what is on the line. Goodell has spelled it all out. This directs us to one last question: With Brady's legacy in play, with four games and $1.88 million on the line, with his integrity being questioned, if he has done nothing wrong …

Given the second chance, why wouldn't Brady cooperate?