Could the destruction of Tom Brady’s cellphone turn the tide in the Deflategate case back in the NFL’s favor?
Brady’s attorney was grilled by judges Thursday in the NFL’s appeal to reinstate a four-game suspension on the New England Patriots’ superstar quarterback. A large part of the focus was on that phone, which the NFL believed may have held evidence of a scheme to deflate footballs used in the AFC Championship Game in January 2015.
The case is in the 2nd Circuit U.S. Court of Appeals in New York. A ruling isn’t expected for months. Neither Brady nor NFL Commissioner Roger Goodell were present in the proceedings Thursday.
In May 2015, the NFL imposed the suspension on Brady after an independent investigator found it “more probable than not” that Brady was involved with locker room attendant Jim McNally and equipment assistant John Jastremski in a scheme to take air out of the footballs New England would use in the game.
The presumed advantage of an underinflated football is that it is easier to catch.
The Patriots defeated the Indianapolis Colts and went on to win the Super Bowl. Brady has denied wrongdoing.
The NFL is appealing a September ruling by a federal judge, who nullified Brady’s four-game suspension because of “several significant legal deficiencies” in how Goodell investigated accusations that the footballs were below league-mandated minimum pressure levels.
The appeals court judges on Thursday questioned NFL Players Association attorney Jeffrey Kessler, who represents Brady, about the quarterback’s destruction of his cellphone.
In the original investigation, the NFL had asked to see the phone’s text messages but lacked subpoena power to force Brady to comply. In his report, the independent investigator hired by the NFL said that Brady, who answered questions over the course of one day, did not turn over personal information such as texts and emails.
According to the report, no one said Brady tampered with the footballs himself, but was implicated in texts involving — and interviews with — McNally and Jastremski.
In July, when Goodell denied Brady’s appeal of the suspension, the league said 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 in his own participation in the underlying scheme to alter the footballs.”
Brady had said that it was his practice to destroy his phone and SIM cards whenever he gets a replacement phone.
On Thursday, appeals court Judge Barrington D. Parker said that Brady’s explanation for destroying the phone made no sense whatsoever.
Judge Denny Chin further said that the cellphone destruction was not a separate issue but was a further step in the ball-deflation plot.
Afterward, Brady’s attorney would not directly answer whether he thought the panel was tough on him.
“I think we’re delighted to have our day in court, and we’re very happy with the proceedings,” Kessler said.
Parker questioned the NFL’s attorney, Paul Clement, about whether a four-game suspension seemed like a “draconian penalty for a few pounds per square inch.”
Afterward, Clement told reporters that the judges were “obviously very well-prepared for this case and heard the arguments from both sides.” He added: “We appreciate the opportunity to present our arguments to the 2nd Circuit today and look forward to their decision.”
Should the panel rule in the NFL’s favor, the league potentially could reinstate the suspension, but Goodell has not commented publicly on the case since before Super Bowl 50, and he would not say then whether the four-game ban would be imposed if the league wins on appeal.
“We disagree with the district judge’s decision.” Goodell said at the time, adding that he was “not going to speculate what we’re going to do depending on the outcome. We’ll let the outcome be dictated by the appeals court. When it happens, we’ll deal with it then.”
