NFL

Destroyed cellphone dooms Tom Brady's DeflateGate appeal

Zak Keefer
zak.keefer@indystar.com
New England Patriots quarterback Tom Brady's four-game suspension was upheld.

A destroyed cellphone cost Tom Brady the first four games of the 2015 NFL season.

The NFL announced Tuesday that commissioner Roger Goodell has upheld the four-game suspension he levied on New England quarterback Tom Brady for his role in the Patriots under-inflating footballs during January’s AFC Championship Game win over the Colts. Goodell cited Brady destroying his cellphone on or shortly before the day he met with investigator Ted Wells as a key factor in the decision.

Click here for full text of NFL decision.

Goodell met with Brady for more than 10 hours on June 23 to hear the Patriots’ quarterback’s appeal. Afterward, Brady's NFL Players Association-appointed attorney, Jeffrey Kessler, told reporters, "I think we put in a very compelling case."

As it stands now, his first game of the 2015 NFL season will come against the Colts in Indianapolis on Oct. 18.

However, Scott Soshnick of Bloomberg reports that the NFL has preemptively filed suit in a Manhattan federal court to confirm Brady's suspension. The NFLPA has also filed a suit against the league on behalf of Brady in a Minneapolis federal court.

In letting Brady and his team know that the appeal had been denied, the league emphasized the new information: That on or shortly before March 6, Brady directed that his cellphone be destroyed. This came after Wells had requested access to text messages and other electronic information pertinent to the case. The NFL believes Wells’ team lost access to nearly 10,000 text messages.

The destruction of the cellphone was not disclosed by Brady to the NFL until June 18, almost four months after the investigators had first sought electronic information.

Goodell concluded that Brady was “aware of, and took steps to support, the actions of other team employees to deflate game footballs below the levels called for by the NFL’s Official Playing Rules.”

Also, “the commissioner found that Brady’s deliberate destruction of potentially relevant evidence went beyond a mere failure to cooperate in the investigation and supported a finding that he had sought to hide evidence of his own participation in the underlying scheme to alter the footballs.”

Brady's agent, Don Yee, issued a statement, calling the appeal process "a sham."

"Just days prior to the appeal hearing, we were notified that we would only have four hours to present a defense; therefore, we didn’t have enough time to examine important witnesses. Likewise, it was represented to the public that the Wells team was 'independent'; however, when we requested documents from Wells, our request was rejected on the basis of privilege. We therefore had no idea as to what Wells found from other witnesses, nor did we know what those other witnesses said.

" ... Finally, as to the issue of cooperation, we presented the Commissioner with an unprecedented amount of electronic data, all of which is incontrovertible. I do not think that any private citizen would have agreed to provide anyone with the amount of information that Tom was willing to reveal to the Commissioner. Tom was completely transparent. All of the electronic information was ignored; we don’t know why. The extent to which Tom opened up his private life to the Commissioner will become clear in the coming days."

Colts owner Jim Irsay told The Star on Monday that he has had no contact "at all" with Goodell while the NFL commissioner weighed Brady's appeal. Irsay added that he hasn't spoken with Goodell on the issue since late January, soon after the Colts were bounced from the playoffs.

As part of Goodell's original punishment, handed out in May, the Patriots were also fined a record $1 million and docked two draft picks, one of them next year's first rounder, in the wake of the Wells report findings. Patriots owner Robert Kraft eventually decided not to fight those aspects of the league's discipline even though he's adamantly defended his team throughout the course of the Deflategate proceedings.

At the appeal hearing, the NFLPA and Brady focused their defense on the reliability of the scientific evidence that weather could have caused the deflation in the footballs. Goodell reviewed testimony from four experts on the topic and concluded, "I find that the full extent of the decline in pressure cannot be explained by environmental, physical or other natural factors. Instead, at least a substantial part of the decline was the result of tampering."

That's where Brady comes into play. As the Wells report initially decided, it was "more probable than not" Brady was aware of the use of under-inflated footballs.

In Tuesday's decision, Goodell also supported the contention by the Wells Report that an equipment manager (Jim McNally) and locker room attendant (John Jastremski) would not deflate footballs without Brady's "awareness and consent." Brady agreed team personnel wouldn't do anything inconsistent with what he wanted but denied being involved in any scheme.

Goodell discounted Brady's denial, pointing to four phone calls between Brady and Jastremski, totaling 25 minutes; 12 text messages; and a meeting in the "QB room," which Jastremski had never been before, on the day after the AFC championship. The two had not communicated that often previously.

"The unusual pattern of communication between Mr. Brady and Mr. Jastremski in the days following the AFC Championship Game cannot readily be explained as unrelated to conversations about the alleged tampering of the game balls," the report states.

Goodell also addressed the issue of whether the penalty was consistent with other similar infractions. He dismissed the Minnesota Vikings warming a ball on the sidelines in a game against Carolina because there was no evidence it was an "intentional attempt to violate the rules, no players were involved and no effort was made to conceal the ball attendant's conduct."

Instead, Goodell cited the attempt to gain a competitive advantage and compared it to performance-enhancing drug use.

"The closest parallel of which I am aware is the collectively bargained discipline imposed for a first violation of the policy governing performance enhancing drugs," the report states; "steroid use reflects an improper effort to secure a competitive advance in and threaten the integrity of the game."

The Patriots issued the following statement in response to the NFL's decision:

"We are extremely disappointed in today’s ruling by Commissioner Goodell. We cannot comprehend the league’s position in this matter. Most would agree that the penalties levied originally were excessive and unprecedented, especially in light of the fact that the league has no hard evidence of wrongdoing. We continue to unequivocally believe in and support Tom Brady. We also believe that the laws of science continue to underscore the folly of this entire ordeal. Given all of this, it is incomprehensible as to why the league is attempting to destroy the reputation of one of its greatest players and representatives."

The NFLPA issued the following statement regarding the decision to uphold Brady's suspension:

The Commissioner's ruling today did nothing to address the legal deficiencies of due process. The NFL remains stuck with the following facts:

  • The NFL had no policy that applied to players;
  • The NFL provided no notice of any such policy or potential discipline to players;
  • The NFL resorted to a nebulous standard of "general awareness" to predicate a legally unjustified punishment;
  • The NFL had no procedures in place until two days ago to test air pressure in footballs; and
  • The NFL violated the plain meaning of the collective bargaining agreement.
  • The fact that the NFL would resort to basing a suspension on a smoke screen of irrelevant text messages instead of admitting that they have all of the phone records they asked for is a new low, even for them, but it does nothing to correct their errors.

The NFLPA will appeal this outrageous decision on behalf of Tom Brady.

Call Star reporter Zak Keefer at  (317) 444-6134 and follow him on Twitter: @zkeefer.