Jason Bonk, a sports legal expert and litigator with Cozen O’Connor, spoke with Metro Thursday regarding Judge Richard Berman erasing Tom Brady’s four game suspension. Bonk outlined five reasons why Brady got the victory in New York:
1. The Jeff Pash issue
“It comes down to Pash and the fact that he wasn’t allowed to testify in the league’s arbitration appeal hearing [on June 23]. The lack of testimony there was mind-boggling,” Bonk said.
Pash, general counsel for the NFL, was allowed to edit the “independent” Wells Report.
2. Lack of Independence
“The NFL’s investigation [into Deflategate] clearly wasn’t ‘independent’and it ties directly to the cost of the whole thing – which, by the way – was a lot more than $3 million,” Bonk said.
3. No direct proof
“The lack of any direct proof in the Wells Report, obviously, is one of the reasons why Brady got off. Berman grilled them on that and they couldn’t come up with anything,” Bonk said.
4. Attorney-client privilege
“In terms of the league’s internal arbitration proceeding and appeal, Goodell not only did not allow Pash to testify, but he also asserted ‘attorney-client priveledge’ over any underlying interviews and documentation that may not have supported Wells’ 700 pages of nothing.”
5. The steroids comparison
“Look atPage 21 of the decision,” Bonk said. “It’s bad lawyering by NFL’s lawyers. The comparison to the use of steroids – when I first heard that I had to re-confirm it about three times. I cannot believe that that comparison was made. For [NFL attorney Daniel] Nash to adopt that and then rectify a comparison like that was mind-boggling to me. Because to compare this to steroids, to say that this is just like the Adrian Peterson case, the Ray Rice case, the Greg Hardy case – which all involved off field conduct as opposed to trying to reframe Brady’s situation as on-field conduct … that was strange. And then to present that argument in front of a federal judge, who happens to be a very liberal judge, a judge in favor of the man or a woman as an individual over the corporate giant … to compare it to steroids, knowing that, is ridiculous. The court really rips that whole comparison apart.”
Metro also spoke with Bonk about whether or not he agrees with Berman’s decision, if Goodell could ultimately be fired, what was up with NFL public relations chiefPaul Hicks stepping down this week,and if Ted Wells will ever with with the NFL ever again.
“All that said, I don’t necessarily agree with Berman’s decision. I believe the NFLPA signed away a great deal of power to the NFL and Goodell in the last round of collective bargaining. I do think it will be appealed by the NFL. But the NFL must now ask itself:’Is it time to take a step back?’ We don’t want to dig a grave worse than the one we just dug.’
“People have the right to criticize Goodell in how far he’s gone here. Will he be fired? I don’t think so. Goodell and Tom Brady are the two individuals who have done the most for the game in the past 10 years or so. And Roger Goodell has taken this whole thing to become the highest revenue generating sport around. Put aside the desire for power here, he’s done tremendous things for this sport. Should he choose to remain in this post, and after the new CBA negotiations, will his power be suppressed a bit? That’s very, very possible. There’s leverage for the NFLPA here.
“The NFL PR guy stepping down is the equivalent of [John]Jastremski and [Jim]McNally not being with the Patriots right now. The NFL had to take some sort of action because of this. I’m sure he got a nice severance package.
“Ted Wells is in hot water right now. I’m trying to say this in the most respectful way, because Ted Wells is a great litigator – he’s a colleague of mine. But do I think he conducted an appropriate investigation here? No. I think he conducted one where he can remain diplomatic. When there’s a new big case like the Dolphins case, or the Brady case, would the NFL go in a different direction? I think that’s a possibility.”