This story actually began – unbeknownst to the rest of us – on January 26th when Patriots’ outside counsel, Daniel Goldberg of Morgan Lewis’ Boston office, sent a letter, labeled “Personal & Confidential”, to the NFL’s lawyer Paul Clement regarding a “matter of significant importance.” (Read the full letter starting at page 4 here).
Goldberg’s letter, in a very politically correct manner (he lays blame on “those who assisted [Clement] in drafting” the NFL’s appellate brief and not Clement himself), identifies several “misstatements of the record” in the NFL’s brief including:
- The NFL’s statement that “Brady’s counsel was present for many of the interviews [by Paul Weiss] at with the [interview] notes were prepared.” Goldberg notes that: (1) Brady’s counsel was only allowed to be present for Brady’s interview; (2) the Patriots counsel, despite repeated requests to Paul Weiss, were not allowed to be present at any interviews of League personnel; and (3) the NFLPA counsel was only allowed to be present for the interview of Stephen Gostkowski. In short, Brady’s counsel was allowed to be a part of his interview but not many of the interviews as the brief says.
- The NFL’s statement that McNally referred to himself as “the deflator” in numerous text messages. Goldberg notes that the term was only used in one text in May 2014.
- The NFL’s statement that “McNally often asked Jastremski to convey to Brady his demands for items of value (e.g., “cash for new kicks”).” Goldberg notes that not a single text or other record evidence shows that McNally asked Jastremski to convey any demand.
- The NFL’s statement that “Wells testified that Pash had provided minor comments on the draft of the Wells Report.” Goldberg notes that Wells’ testimony “was that he did not know the content of Mr. Pash’s comments, assumed they were in the nature of wordsmithing, and raised privilege issues on further details.” Thus, the NFL misstated Wells’ testimony by saying he had minor comments when in fact Wells testified that he did not know the contents of Mr. Pash’s edits.
- The NFL’s statement that Brady specifically discussed inflation levels when he was involved in the effort to change League Rules to allow each team to inflate its own game balls. Goldberg points out that there is no evidence of this and that inflation levels were not part of the rationale to change the rule.
Goldberg requests that Clement review these misstatements as “[e]ven a single misrepresentation of the record evidence is something I know you would not countenance.” Most importantly, Goldberg’s letter sheds lights on a new development: The Patriots are playing active behind-the-scenes role in the Deflategate appeal.
After receiving the letter, Clement did not amend the NFL’s brief to address Goldberg’s concerns. Rather, he proceeded with oral argument, which went very well for the NFL.
After oral argument there were numerous rumblings from the media that Clement continued to misstate the record. Then on March 17th, New York Law School Professor Robert Blecker filed a letter with the Court, bringing these “misstatements” and others to the appellate judges’ attention. As an exhibit to his letter, Blecker attached Goldberg’s Personal & Confidential letter to Clement, making it public for the first time.
One interesting and unknown aspect of this story: How did Blecker obtain the letter in the first place? The letter was addressed only to Paul Clement and, as we later learned in Clement’s letter to the Court (more below), likely not sent to Blecker. Who leaked the letter to Blecker, and why, will be an interesting storyline moving forward.
Blecker has been an outspoken observer of the Deflategate saga even though, believe it or not, he is not a Patriots fan. In December, he filed an amicus brief (a friend of the court brief) detailing his Deflategate conspiracy theory. He even appeared on 60 minutes to discuss this case:
Blecker’s letter (full letter here) reasserts some of Goldberg’s “misstatements” and identified two new “misstatements”:
- The NFL’s statement that “four of the Colts footballs were tested at halftime as well, and all were within the prescribed air pressure range on at least one of the two gauges.” Blecker notes that the NFL misleads the court by failing to emphasize that three out of the four Colts balls measured below the legal minimum on the other gauge used.
- The NFL’s statement during oral argument that Roger Goodell rightly came to the conclusion that Brady’s testimony he and Jastremski “only talked about ball preparation for the Super Bowl” was incredible on its face. Blecker, who quoted Clement based on his notes from attending oral argument, notes that Brady actually testified that discussed ball preparation and the pending investigation/allegations with Jastremski leading up to the Super Bowl.
Moreover, Blecker holds Clement’s feet to the fire by insinuating that he is in violation of the American Bar Association’s rule of “Candor Toward The Tribunal”:
A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.
In closing, Blecker states that he is “hard put” to understand how the NFL did not knowingly make false statements in its brief and at oral argument. He also, oddly, asserts that — because of Deflategate — he is no longer is among those “who detest the Patriots” but should be viewed as an “honest neutral observer.”
Clement, who if a Republican President wins the election, will be on the short of list of potential nominees to succeed the late Justice Antonin Scalia as a Supreme Court Justice, decided to not let the allegations of “misstatements” go unanswered. Yesterday, he filed a scathing letter (full letter here) responding to Blecker’s accusations calling it “procedurally improper and wholly unfounded.”
Pulling no punches, Clement goes after Blecker, pointing out that the Court has not yet accepted Blecker’s amicus brief, that Blecker is not a party to this appeal, and that he had an opportunity to address 3 of the 4 “misstatements” in his previous brief. Most notably, Clement questions Blecker’s own candor and ponders how Blecker got his hands on the Goldberg letter:
Mr. Blecker’s own duty of candor might be thought to include the need to disclose that the highly unusual “Personal & Confidential” letter that somehow came into his possession was not from some disinterested observer, but from the New England Patriots’ outside counsel.
Clement also addresses each specific “misstatement”:
- “The Deflator” text message(s): Clement argues that Blecker selectively quoted the NFL’s brief and that the full statement is not misleading. He even accuses Blecker of not “honor[ing] the convention among lawyers of noting the omission of the end of a sentence with an ellipsis.” Clement cites the full sentence in question, with the omitted portion in italics: “In messages dating back to May 2014 and continuing during the 2014-15 season, McNally referred to himself as the ‘deflator’ and the two discussed deflation using needles.” Thus, the NFL’s statement that there were text messages included both the single May 2014 deflator text and other messages discussing deflation and was accurate.
- Brady’s counsel present for “many” interviews: Clement argues this fact is immaterial because the finding (by Roger Goodell during the underlying proceedings) was only noted in the facts section of the brief and was not advanced as argument. He also notes that the NFLPA argued this point in its response brief and specifically identified which interviews Brady’s counsel as present for. Notably, for the first time, Clement does not deny that Goldberg/Blecker’s version of the facts is correct.
- Air Pressure Testing: Clement argues that Blecker does not identify a “misstatement”; rather, he “simply disagrees with the damaging inference the Commissioner drew from those undisputed facts.” Therefore, a misstatement by Clement could not have been made.
- Brady’s “implausible” explanation for conversations and meetings with Jastremski after reports of ball tampering surfaced: Clement states that any distinction regarding whether the conversations between Brady and Jastremski were “exclusively about Superbowl preparation, or primarily about Super Bowl preparations” was immaterial. Clement argues that what is relevant is that the Commissioner found Brady’s only innocent explanation (that those conversations related to preparation of Super Bowl footballs) of the meetings not credible.
The NFL was allowed another opportunity to argue their case in exchange for a minimal (if any) credibility hit.
Throughout the letter, Clement continually advances his central argument that this type of letter war is the not proper avenue for “testing each other’s arguments.” For example, Clement ends the letter by stating: “Post-argument letters quoting media articles and leveling unfounded ethical allegations play no proper part in that process and should have no bearing on the resolution of this appeal.”
Despite the fireworks, the impact of this letter battle will likely be minimal. The three judges assigned to the case will certainly read the letters and draw their own conclusions about Clement’s candor. However, the NFL’s method of argument is not unusual for an appellate brief and it is not surprising that Clement – who has a pristine reputation of candor in the federal court system – has not recanted the statements in question.
In fact, the letter exchange may actually hurt the NFLPA/Brady. Each party to a federal appeal receives very limited opportunities to further their arguments to the court. For example, in this case the NFL filed two briefs and received roughly 15 minutes of argument – that is it. Blecker’s letter to the court opened the door for Clement to reargue some of his key appeal points. There is also no clear legal basis for the NFLPA/Brady to file a letter of their own (although they may try to do so anyway in the coming days). So in essence, the NFL was allowed another opportunity to argue their case in exchange for a minimal (if any) credibility hit. As crazy as it sounds, the questioning of Clement’s candor may result in the NFL winning another battle – building on its apparent oral argument win – in the Deflategate war.