Tom Brady's DeflateGate testimony, phone records revealed in NFLPA filing

Tom Brady said repeatedly in a June appeal hearing he doesn’t recall exactly what he spoke about in a series of conversations with one of two low-level New England Patriots employees the NFL has accused of scheming with the star quarterback to deflate footballs.

But Brady testified he asked equipment assistant John Jastremski whether Jastremski was guilty, and Jastremski’s response was unequivocal: “We didn’t do anything.”

Testimony from the June 23 hearing before Commissioner Roger Goodell became public Tuesday, when the NFL Players Association filed its amended answer and counterclaim to the NFL’s lawsuit in U.S. District Court in New York.

On cross-examination at the hearing, Brady testified he never thought about the air pressure in footballs until after an Oct. 16 game against the New York Jets in which officials grossly overinflated the balls provided for use by the Patriots offense.

After that, Brady testified, he reviewed the rule book and instructed those responsible for preparing the footballs to fill them to 12.5 psi – the low end of the permissible range under NFL rules – and pass along a note to officials that’s where he wanted the balls to stay.

Asked about text messages between Jastremski and locker room attendant Jim McNally that attorney Ted Wells determined in a league-commissioned were inculpatory evidence, Brady said, “I think that you can interpret however you want to interpret them.

“Me, personally, John said he didn't do it. I believe John. I never authorized anybody to do it. I never talked about doing it, so I don't know what else I can say. I'm on the field playing. He said he didn't do it. I believed him. I can't speculate to something that I was never there for that I never saw that I never talked about.”

The NFLPA’s filing in the U.S. District Court for the Southern District of New York argues that the court should vacate a four-game suspension that Goodell upheld against Brady.

Attorneys for Brady and the Players Association say the arbitration of Brady’s suspension defied the collective bargaining agreement and arbitral principles of fairness and arbitrator bias.

The 59-page filing is similar to others made in the case but came with 236 exhibits, which included hundreds of pages of Brady’s email and phone records.

In the 172-page transcript from Brady’s June 23 appeal hearing, NFL executive vice president of football operations Troy Vincent testified the first time he was aware of any issue or allegation came when Indianapolis Colts general manager Ryan Grigson knocked on the door (presumably of Vincent’s suite) with 6 or 7 minutes to go in the first half of the AFC Championship game and said, “We are playing with a small ball.”

Once Grigson left the room, Vincent – whom Goodell authorized to issue discipline against Brady and the Patriots – testified that he immediately turned to his left and told Mike Kensil, the NFL’s vice president of game operations, and “just told Mike that during halftime we should probably look at testing all of the balls from both sidelines. And at that particular time, he was on the phone with our sideline officials putting steps in order.”

Attorney Ted Wells, whose report was the basis of the league’s discipline of Brady, testified the cost of his league-commissioned investigation into the issue was in the range of $2.5 million to $3 million.

The NFLPA had until Friday to submit its brief to vacate Brady’s suspension, which was upheld by Goodell July 28.

Brady’s suspension stems from his alleged role in deflating footballs in the January games against the Colts, which New England won 45-7. Wells found that Brady was “generally aware” of the conduct of two Patriots employees, which Wells deemed “more probable than not” that they released air from the footballs after they had been examined by a referee before the start of the game.

The union’s filing Tuesday is an expanded version of its answer and counterclaim filed last week and largely rehashes points made in the NFLPA’s initial filing in Minnesota and outlined publicly by attorney Jeffrey Kessler.

The Players Association argues that Brady did not have notice of the policies and penalties he was being subjected to, that procedures were not in place to provide fair and consistent discipline, that the discipline was the product of a “fundamentally unfair arbitration proceeding” and that Goodell was an “evidently partial” arbitrator.

It also contends that Brady did not have notice that his failure to cooperate with the Wells investigation could lead to discipline from the league. On advice of his agent, Brady declined to turn over to Wells emails and text messages.

The NFLPA’s filing argues that “Goodell’s decision on the punishment for alleged non-cooperation yet again violated the CBA requirement of notice.”

To make that point, the document cites former NFL Commissioner Paul Tagliabue’s ruling in the Saints Bountygate scandal in December of 2012, in which Tagliabue wrote “There is no evidence of a record of past suspensions based purely on obstructing a League investigation.”

Furthermore, the Players Association wrote that Goodell ignored Wells’ testimony during the June 23 appeal in which Wells said he “did not tell Mr. Brady at any time that he would be subject to punishment for not giving — not turning over the documents.”

In his testimony during the appeal hearing, Wells said he rejected Brady’s assertion that he knew nothing about ball deflation during the game.

“I did reject it based on my assessment of his credibility and his refusal or decision not to give me what I requested in terms of responsive documents. And that decision, so we can all be clear and I will say it to Mr. Brady, in my almost 40 years of practice, I think that was one of the most ill-advised decisions I have ever seen because it hurt how I viewed his credibility.”

Later, on questioning by Daniel Nash, an attorney for the NFL, Wells testified that he tried to work with Don Yee, Brady’s agent, to get records of emails and text messages so that Brady wasn’t put in a position of not cooperating.

“Not only did it hurt him in terms of how we evaluated his credibility, but it put us in a hell of a spot because you have a person with this exemplary record and has done all these good things that people are saying, and yet they are conducting themselves in a fashion that suggests they are hiding something and may be guilty and not being forthcoming,” Wells said. “So it was really hard to give them credit for the good stuff when he's basically looking you in the face and saying, ‘I'm not going to give you my phone.’ But like I said, it not only hurt Mr. Brady, it hurt the investigation because it put us in a position we didn't want to be in because we wanted to be able to listen to him and evaluate his credibility without this cloud.”

The NFLPA’s answer and counterclaim challenges the fairness of the process the league’s officials used to measure pressure of the questioned balls at halftime. The union’s claim is that because specific protocols were not in place during the AFC Championship game, the data became “utterly unreliable” as a basis for discipline in Brady’s case.

“In fact, just one week ago, the NFL let it be known that it is for the first time implementing procedures for ball pressure testing — a stark concession that it had no procedures in place when the data on which Brady’s punishment was based was collected,” the union wrote.

Now, the NFL must respond and file its own brief, detailing arguments in favor of its side.

This falls in line with a schedule confirmed by both parties after Judge Richard M. Berman agreed to an expedited process that seeks a resolution to the legal proceedings before the start of the NFL season.

As part of that timeline, Berman scheduled a status/settlement conference for Aug. 12 in Manhattan, in which he urged both Brady and Goodell to appear. Berman added that more written submissions could be filed to the court, if necessary, by Aug. 14.

Finally, Berman scheduled a status/settlement/oral argument conference for Aug. 19.

This revised schedule is the result of a letter written by Kessler to U.S. District Court for the Southern District of New York, filed Friday, which states that both sides agreed it “would be in everyone's best interest” to have the matter resolved by Sept. 4.

New England plays the Pittsburgh Steelers in the NFL’s regular season kickoff game Sept. 10.