12

by Casey Sherman

  But no one was more shocked by Kraft’s statement than Brady, who hadn’t been given a heads-up by the owner. Maybe Kraft was adhering to his father’s advice when Harry Kraft told him, “You have a wonderful way of not holding grudges that can hurt you. Stay that way and you’ll live a happy life.”

  But Brady and the fans didn’t see it that way. Number 12 had been the Patriots player most responsible for the team’s success, both financially and on the field. Kraft had built a small city around his stadium called Patriot Place that included a hotel, restaurants, and retail shops. It’s likely that none of that would have been possible without Brady.

  Perhaps, Kraft had weighed his decision against his fellow owners’ disdainful treatment of the late Raiders owner Al Davis, who had engaged in both a hot and cold war with the NFL for decades and thus was ostracized by the group of billionaire owners, who used every opportunity to punish him. Taking an Al Davis–like position was not a good long-term business strategy for Kraft or the New England Patriots. Later, when Cowboys owner Jerry Jones battled Roger Goodell over the six-game suspension of star running back Ezekiel Elliott for abusing an ex-girlfriend, Jones reportedly told the commissioner over the phone, “I’m gonna come after you with everything I have. If you think Bob Kraft came after you hard, Bob Kraft is a pussy compared to what I’m going to do.”92

  Patriots fans were looking for similar words of defiance from the owner, whom many now branded as a traitor. Despite currently running the winningest franchise in New England sports, Kraft was eviscerated by the members of Patriot Nation, who took to the airwaves to denounce the owner.

  With Kraft laying down his arms, Brady and the NFLPA would have to fight the war on their own.

  There would, however, be a short respite to all the talk of Deflategate when Robert Kraft hosted a lavish ceremony at his current Chestnut Hill mansion to present Brady and his teammates their Super Bowl rings.

  “I’ve got all my rings,” the quarterback excitedly told the owner.

  Kraft smiled.

  Gisele Bündchen pointed to her purse. “I know, I’ve been carrying the rings. That’s my job.”93

  Later inside a giant tent before the rings were handed out, Brady and Kraft shared a private moment together in the middle of the party.

  “We’re lucky,” Kraft told his quarterback.

  “I know, we sure are,” Brady replied.

  “And I’m lucky to have you in my life,” the owner continued.

  Brady pulled Kraft close and gave him a warm hug.

  “I feel the same way. I love you so much.”

  The championship ring was smothered with 205 sparkling diamonds and was the biggest Super Bowl ring ever produced. The phrases “Do Your Job” and “We Are All Patriots” were engraved on the sides along with Kraft’s signature.

  Gisele pulled the rings commemorating her husband’s three previous championship seasons from her purse, and Tom slipped them on his fingers in anticipation of the fourth.

  Bow-covered boxes were handed to each player and coach by members of the five military branches, and then on a count of three, they were opened. Number 12 placed the newest bauble on his finger and flashed his bejeweled hands for the camera. It was a statement to the fans and more important to Goodell. This was a moment and an honor that he could not take away.

  The evening had gone a long way to repairing the relationship between Brady and Kraft. Number 12 would forgive the owner for his apparent lack of support, but he would not forget. More than a year later, during the 2017 regular season, Brady was asked by radio host Kirk Minihane if he was comfortable with the way Kraft had handled Deflategate. The quarterback offered no comment. It was a gesture that spoke volumes.

  Brady’s appeal to the NFL was set to be heard in late June 2015. DeMaurice Smith and his team had less than two months to prepare. The NFLPA lawyers would spend nearly every waking moment on the case, which meant that all would spend more time at the office and less time at home with their families. The late-night strategy sessions were a free-flowing forum for ideas and debate. Smith did not surround himself with yes-men or -women, nor did he demand that no one reach for a slice of pizza or a sandwich before he ate. He debated strategy with Heather McPhee and others and decided that the best course of action was to target directly the NFL’s only perceived connection between the quarterback and the deflated footballs—the assumption that he was “generally aware” of alleged cheating by Patriots employees Jastremski and McNally. One major issue they would have to deal with was the fact that Tom Brady got rid of his Samsung phone and replaced it with a new iPhone 6 after his agent, Don Yee, had told him that the physical phone would not be subject to any investigation, only the records of calls and texts.

  Once Smith and his team learned that Brady had destroyed the phone, they feared that the league and the media would scream cover-up.

  “Gisele had been destroying her phone for years, ever since the phone-hacking scandal erupted in Britain,” Heather McPhee explained. “She’s an international supermodel and had knowledge of ways to protect herself from having her photos and conversations hacked by reporters and served up to the public. Tom did the same thing.”

  Much of the fear stemmed from the fallout of a 2005 investigation of a reporter for the Rupert Murdoch–owned tabloid News of the World and a private investigator who were arrested and later convicted for hacking phone conversations between Britain’s Prince William and his brother, Prince Harry. Reporters were also known to have targeted politicians, movie stars, and even the mobile device of a thirteen-year-old kidnapping and murder victim.

  Ironically, in the court battle that followed Brady’s appeal, his personal e-mails, which were among 40,000 pages of documents submitted by the NFLPA, were revealed to the public. Among them were conversations between Brady and a childhood friend about comparisons to his longtime rival Peyton Manning.

  “I’ve got another 7 or 8 years. He [Manning] has 2,” Brady wrote. “That’s the final chapter. Game on.”94

  It was now game on for Brady and his legal team. When number 12 arrived at NFL headquarters at 345 Park Avenue in New York on the morning of June 23, 2015, and stepped out of a black Chevy Suburban, he was smartly dressed in a dark suit but appeared gaunt, the weathered creases on his forehead now more visible. A couple of Patriots fans fought for the star quarterback’s attention as he walked across the sidewalk. Brady smiled graciously, but Heather McPhee had her game face on. The hard-nosed attorney stiff-armed one autograph hound to clear a path so her client could enter the building quickly without being corralled by the throngs of media positioned outside.

  Inside, Brady and the NFLPA team were led to the basement of the building, where the appeal would be heard. To McPhee, the move was a clear attempt at intimidation by the league.

  “Their state-of-the-art conference room on the sixth floor would have easily accommodated us, but instead they stuck us in a cramped basement room,” McPhee recalled. “So it’s hard not to read symbolism into the location they chose.”

  At six foot four, Brady looked like Gulliver in the land of Lilliputians as he attempted to navigate the tight space with his lanky frame.

  After entering the cramped conference room, Commissioner Goodell addressed both sides.

  “We all know why we’re here this morning. This is in response to an appeal filed by Tom Brady,” Goodell began. “I’m particularly interested in anything Tom has to say, and I look forward to hearing directly from him.…I will oversee this, but as you know, I’m not an attorney.”95

  Exactly, DeMaurice Smith thought to himself. It’s one of the main reasons why we asked you to recuse yourself from hearing the appeal, but you refused and here we are.

  Before anyone would hear from Tom Brady, lawyers on both sides had to set the stage. Opening statements for the NFLPA were presented by Jeffrey Kessler, a renowned labor lawyer hired by DeMaurice Smith to argue Brady’s case. Kessler was a legendary courtroom brawler who had worked on the Ray Ri
ce appeal, had helped establish NFL free agency, and represented Bill Belichick in 2000 when the coach sued the NFL and the Jets to break his contract to go to the Patriots. Kessler was fighting for New England once again, and this time he had plenty of ammunition to defend Brady, thanks to the meticulous case built by the NFLPA.

  “You didn’t have any witnesses yourselves,” he addressed Goodell. “You are essentially relying on Wells’s conclusions. I’m compelled to note at the beginning that the conclusion of the Wells Report, with respect to Mr. Brady, is that he was generally aware of something. It is our position that there is no policy, no precedent, no notice that has ever been given to a player in the NFL that they could be subject to any discipline…for being generally aware of something.”96

  Kessler in essence was accusing the NFL of making up the rules as it went along in the Deflategate case.

  “It doesn’t make sense for Brady to be involved with the inflation of footballs,” Kessler argued, “as what he cares about it is how they feel in his hand, not how they are inflated.” Brady’s lawyer played word games here in an attempt to suggest that although number 12 liked a softer football, he had no knowledge of the exact air pressure of each ball.

  He also said that punishing Tom was equivalent to censuring a player who may have been generally aware that another player was taking steroids but had nothing to do with supplying or injecting the performance-enhancing drug. In that situation, Kessler argued, the only person who could be punished was the player taking steroids, not someone who might be generally aware it was happening.

  It was now Tom Brady’s turn to tell his side of the story, and this time he attempted to remove any doubt that he was even generally aware of any scheme to deflate footballs.

  “Have you ever specifically told anyone on the Patriots…that they should change the inflation level of the footballs after you’ve approved them?” asked Kessler.

  “No, I would disapprove of that,” Brady answered.

  Kessler asked him if the issue of inflation ever came up as a factor when selecting his footballs.

  “Never,” the quarterback replied.

  During cross-examination, Lorin Reisner, a partner of Ted Wells, questioned Brady about his cell phone.

  “Were there any e-mails or texts that you were worried about which showed you knew about deflating or anything like that? Was there anything you were trying to hide or conceal in your mind?”

  “Absolutely not,” Brady replied.

  The quarterback had provided the NFL phone records that showed he sent or received ninety-nine hundred text messages over an eighty-three-day period following the initial Deflategate reports. It is not clear what percentage of these text messages had focused on the growing crisis, but the level of activity was not deemed to be excessive, given the two-and-a-half-month timeline of texts.

  Following Brady’s testimony, the NFLPA called its expert witness, Edward Snyder, dean of the Yale School of Management, to debunk the scientific and statistical analysis used by Ted Wells to determine the cause of the ball deflation. Snyder, through the use of several slides, called the conclusions of the Wells Report nothing short of “improper.”

  When it came time to question Wells himself, Kessler asked the lead investigator why he was so quick to dismiss Brady’s claim that he had nothing to do with any deflation of footballs before the AFC championship game. Wells went back to the quarterback’s decision not to turn over his cell phone.

  “I did reject it [Brady’s testimony] based on my assessment of his credibility and his refusal or decision not to give me what I requested in terms of responsive documents,” Wells testified. “I will say to Mr. Brady, in my almost forty 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.”

  As Heather McPhee had predicted, Don Yee’s ill-fated strategy not to cooperate with Wells had hurt his client. The investigation wasn’t just professional for Ted Wells any longer. It had become personal. McPhee felt that Wells’s objectivity was clouded by anger toward Yee and—by association—Brady.

  Attorney Kessler believed that Ted Wells was also motivated by something else. He asked Wells about whether he viewed himself as an “independent investigator” while working under a retainer paid for by the NFL.

  “I do the best job that I can,” Wells replied.

  The appeal hearing lasted ten long, grueling hours. And like Brady’s Patriots teammates in the Super Bowl, his legal team felt it had left everything on the field. But with Roger Goodell in charge, the field was anything but level.

  Five days after the hearing, the NFL announced that it would not reduce the quarterback’s four-game suspension. Roger Goodell called Brady’s smashing of his cell phone a deliberate act of destruction of potentially critical evidence that went beyond the mere failure to cooperate with the investigation. That news nugget was gobbled up by hungry reporters looking for a smoking gun against the superstar. Brady took to Facebook in an attempt to explain the destroyed cell phone.

  “I replaced my broken Samsung phone with a new iPhone 6 AFTER my attorneys made it clear to the NFL that my actual phone device would not be subjected to investigation under any circumstances,” Brady wrote. He went on to say that he was never made aware at any time during the investigation that failing to turn over his phone would cause trouble.

  Brady was paying for his agent’s mistake. As with the weird “deflator” explanation, even some of Tom’s staunchest supporters had a hard time believing it.

  DeMaurice Smith immediately filed a petition in federal court to vacate the NFL’s arbitration decision.

  Chapter Sixteen

  Highs and Lows

  The NFLPA wanted to argue Brady’s case in front of a real judge and not someone who just believed he had the authority to act like one. The union filed a federal lawsuit in Minnesota, a state that had been friendly to players in the past, most notably Vikings star Adrian Peterson, who had recently won a lawsuit to vacate a suspension for abusing his child. But a judge there said it made no sense to hear Brady’s case because he played in Massachusetts, the union had its headquarters in Washington, D.C., and the NFL league offices were located in New York. Since the league had also filed a lawsuit, the case would be heard in Manhattan in front of Judge Richard M. Berman of the United States District Court.

  The two-hour hearing took place in August, and no cameras were allowed in the federal courtroom. Instead, sketch artist Jane Rosenberg was hired to draw up a visual representation of the proceedings. The artist quickly sketched the room with Brady sitting next to agent Don Yee in the second row. Rosenberg’s image of number 12 looked more like Freddy Krueger, which turned into a nightmare for the artist when the sketch went viral and was mocked across the country. It was a light moment in the middle of a dark storm where Brady’s legacy and his future were squarely on the line.

  Attorney Jeffrey Kessler argued before Judge Berman that Goodell’s power wasn’t limitless and that there had to be a fair and consistent method to how the commissioner disciplined the players.

  But Berman seemed more concerned with what he called the “quantum leap” between Wells and Goodell in their findings. Ted Wells said that Brady was “generally aware” of the ball deflation, while Roger Goodell stated in his ruling that the quarterback had been involved in a “scheme.”

  Berman pushed for a settlement between the two sides but was ready to make a ruling if a compromise couldn’t be reached.

  Meanwhile, Tom returned to training camp in Foxborough as he prepared for the 2015 regular season and waited for a deal to come. But there would be no settlement.

  On September 3, 2015, Judge Berman erased Brady’s four-game suspension in a stunning rebuke to Roger Goodell. In his filing, Berman wrote that Goodell “had dispensed his own brand of industrial justice” and found aspects of the NFL’s decision “fundamentally unfair” to Brady.97

  When word of Berman’s decision reached the Patri
ots, the team immediately posted a photo of Brady with his fist raised in the air on its Twitter feed. It was just a picture. No words were necessary. Teammate Rob Gronkowski posted a photo of Brady riding the big tight end’s back after a touchdown. Let’s go!, Gronk wrote. This season to be one heck of another ride!

  Another ride indeed. The Patriots started the 2015 season with ten straight wins before finishing with a 12–4 record. Along the way, they clinched their seventh-straight AFC East title, tying a league record. Brady played all sixteen regular-season games, passing for forty-seven hundred yards and thirty-six touchdowns with only seven interceptions.

  Deflategate was now a painful but distant memory for the quarterback and his fans. But another tempest was forming on the horizon. Fans felt the first sting of disappointment in the AFC championship game against Peyton Manning and his new team, the Denver Broncos. Denver denied the Patriots the opportunity to repeat as world champions as the defense stopped a late Brady surge to win the game 20–18. To add salt to Patriots fans’ wounds, the Broncos went on to win Super Bowl 50 against league MVP Cam Newton and the Carolina Panthers in San Francisco, Brady’s hometown. The victory allowed Peyton Manning, who had struggled mightily through the season, the chance to ride off into the sunset of retirement under a flurry of orange and blue confetti.

  A smiling Roger Goodell handed Manning the Lombardi Trophy on the podium. Just days before, the commissioner had told reporters during his annual Super Bowl news conference that the future looked bright and that there was lots of work to do. He talked about growing and improving the game. There was no mention of Brady or lawsuits, but Goodell had always vowed to appeal Judge Berman’s decision. It seemed laughable now, a case of sour grapes to most fans and reporters alike. Brady had won the war. Or so they thought.

  But DeMaurice Smith and Heather McPhee were worried. There was an old clause in the league’s collective bargaining agreement with the players called Article 46, which allowed the commissioner the power to impose discipline and handle any appeal regarding matters relating to conduct detrimental to the integrity of the game. In short, the clause gave Goodell the authority to punish with impunity any player that crossed him. Smith detested Article 46, but for now it was the law of the NFL land, and that spelled bad news for Brady.