Another week of Deflategate, another week of the absurdity reaching new heights — or depths.
Over the past week, Robert Kraft asked the courts to consider limiting his commissioner’s powers, we learned about the “Stolt-Nielsen vs. Animalfeeds” Supreme Court decision, and comedian Jim Breuer turned into the best NFL investigative reporter since Rob Lowe .
Let’s take a deeper dive into the newest twists and turns to this never-ending saga:
■ Article 46 of the NFL’s collective bargaining agreement, outlining the commissioner’s disciplinary powers, isn’t quite explicit about every situation that arises (such as Deflategate), leaving room for interpretation:
“The Commissioner may serve as hearing officer in any appeal . . . of this Article at his discretion.”
Many of us interpret this as granting the commissioner broad, wide-sweeping authority to rule over the NFL.
But new Team Brady attorney Ted Olson argues in his en banc appeal brief filed last Monday that the opposite is true. Olson’s strongest argument is that Roger Goodell changed the basis for his punishment when relying on Brady’s cellphone destruction for upholding the four-game suspension.
There’s nothing explicit in the CBA about the use of new facts at an NFL appeal hearing.
Citing the Stolt-Nielsen case from 2010, Olson wrote, “many courts of appeals have held that an arbitrator must exercise only those powers expressly delegated to him by the parties.
“The panel majority took a conflicting approach, holding that ‘nothing in Article 46 limits the authority of the arbitrator to examine or reassess the factual basis for a suspension.’ That gets it exactly backward.
“As Chief Judge Katzmann correctly explained, the only authority the CBA granted the arbitrator was ‘to decide appeals’ of disciplinary decisions.”
It’s a very literal interpretation of the CBA. Getting seven out of 13 judges on the Second Circuit to agree with it won’t be easy.
To play devil’s advocate, Goodell said several times before last June’s hearing that he was open to hearing any “new information” from Brady at the appeal. Would Goodell not have been allowed to reduce Brady’s punishment from four games to two had he heard new information that worked in Brady’s favor?
And Goodell had determined before the appeal that Brady did not cooperate with Ted Wells’s investigation, factoring that into the original punishment. Learning about the destroyed cellphone didn’t really shift the basis for his punishment, instead just reaffirming Goodell’s ruling of non-cooperation. “My findings and conclusions have not changed in a manner that would benefit Mr. Brady,” he wrote.
Last July, I asked a Boston labor attorney whose firm represents some of the bigger unions in New England — the Boston Police Patrolmen’s Association and the Massachusetts Teachers Association, among others — to analyze Article 46.
“Article 46 is so deferential to the commissioner’s authority to take any kind of disciplinary action on players who are, in his judgment, taking parts in actions that are detrimental to the league,” said Nick Pollard of Sandulli Grace. “Law requires that the arbitrator couldn’t possibly have made a rational decision or one contemplated by the parties, and since Article 46 is so deferential to his authority, it’s hard to make that argument.
“In most CBAs, there is a more healthy appeals process by an actual neutral third party. This doesn’t exist there, and I think the inference from that is that the parties did intend for the commissioner to have a great deal of authority in meting out discipline.”
■ Another Deflategate twist came from Breuer, the former “Saturday Night Live” cast member who told Sports Illustrated and then 98.5 The Sports Hub about his supposed encounter with John Jastremski while working out in the gym at a Mexican resort.
One noteworthy angle to explore was the timeline of events Breuer presented.
Breuer initially said the run-in came in January, but it was actually in early November when he played a comedy event at the Royalton Riviera Cancun. After admitting the gaffe, Breuer read on the air the e-mail he allegedly received from Jastremski dated Nov. 10, inviting Breuer for a drink and thanking him for the conversation the previous day.
This timeline calls into question whether the Patriots quietly fired Jastremski last year.
The Patriots requested Jastremski and Jim McNally be reinstated from their suspensions on Sept. 9, and the NFL granted it on Sept. 16. Headlines all over the country blared, “Patriots’ Deflategate employees reinstated.”
The last we heard about Jastremski came on Oct. 12, when Bill Belichick was asked about Jastremski’s role with the team.
“John and the organization are still discussing the best options for him, and I’m not aware of any timetable on that. That’s where it is for now,” Belichick said.
But if Jastremski was in Mexico talking to Breuer on Nov. 9 and 10, then he probably wasn’t in Foxborough for the Patriots’ Nov. 8 game against Washington, or working in the locker room as they prepared to face the Giants the following Sunday. Breuer went on to say that Jastremski, a Patriots employee since working as a ballboy as a child, had indeed been fired by the team and was unable to get another NFL job.
Since Breuer’s story wasn’t 100 percent solid, I twice asked the Patriots to clarify or comment on Jastremski’s employment status — Was he fired? Suspended with pay? None of the above? The Patriots declined to respond both times. If they did in fact fire Jastremski, it certainly changes the narrative about the team’s belief of its innocence.
■ Kraft stuck his neck out a bit last week with his amicus brief filing to the Second Circuit in support of Brady.
In one sense, the filing was mostly a harmless way for Kraft to attack Goodell and show his support for Brady. Kraft has taken a beating from a faction of the fan base who wanted him to support Brady more fervently, and a “friend of the court” filing at this stage of the process, with Brady down to his last strike, won’t have much impact in court but is a good way to publicly support his quarterback.
But there was a report by Bleacher Report that three NFL owners were upset with Kraft’s filing, which asked the court to consider Brady’s appeal on the grounds that he didn’t receive fair treatment from Goodell. If true, it’s a fair point — Kraft just provided the NFLPA with a bit of ammunition to limit commissioner power when the owners and union meet for the next CBA negotiations in five years.
Do Raiders even have Vegas plan?
Patriots fans don’t believe much that comes out of Roger Goodell’s mouth, but everyone should definitely take at face value the comments Goodell made Tuesday about the Raiders and any potential move to Las Vegas.
“It’s very premature at this point,” Goodell said at the owners meetings in Charlotte, N.C.
That was definitely the word behind the scenes at the meetings. While Raiders owner Mark Davis said he was “very optimistic” about being able to move his team to Vegas, and “I haven’t heard no,” Davis is a long, long, long way off from pulling it off.
Two owners we spoke to said there was zero discussion of the move at Tuesday’s meetings, and that none of the owners had seen any research, market studies, or plans about how the Raiders and the NFL would succeed in Vegas.
Goodell reiterated that sentiment, and much more, in his end-of-day news conference.
“One, there is not a proposal that at least Mark has presented to us. My understanding is there is not a proposal,” Goodell said. “Two, there’s a great deal of work that needs to be done for ownership to make that kind of consideration. There’s a variety of factors: The stadium itself, what the stadium proposal is, the market itself, and market studies. We obviously, in Las Vegas, have been well documented that we’d have to consider the impact from a gambling standpoint. All of those things are an ownership decision, and until we have more information it’s just pure speculation at this point in time.”
The Raiders have a one-year lease at O.co Coliseum and two one-year options, as well as the opportunity to join the Rams in Los Angeles if the Chargers decline. But as one NFL insider explained to us, the Bay Area has much more value for the NFL than does Vegas, and the best option is clearly for the Raiders to stay put.
The Bay Area is the nation’s sixth-largest TV market, while Vegas is 42d, and the Bay Area obviously has a ton of corporate wealth and valuable business partnerships. The 49ers already represent the region, but they now play in Santa Clara, located near San Jose on the southwest corner of the bay, 43 miles from downtown San Francisco. O.co Coliseum is only 17 miles from San Francisco, and the Raiders have a great opportunity to capitalize on the North Bay fan base.
NFL owners haven’t studied the Las Vegas market yet, they haven’t looked at any stadium or relocation plans, haven’t studied the adverse consequences of having a team located in the gambling capital of the country, and overall have no idea if the move is a viable option. The far more realistic and beneficial situation for the league remains the Raiders getting a deal done in Oakland.
NFL explains its donation shift
One area in which it’s correct to be skeptical of Roger Goodell is his response to the Democratic congressional report accusing the NFL of pulling its funding of a $16 million study from the National Institutes of Health after the league didn’t like the head researcher chosen for the project, Dr. Robert Stern of Boston University.
The $16 million, which came from an overall donation of $30 million from the NFL, was supposed to fund a potentially groundbreaking study seeking to diagnose CTE in living patients, and the congressional report stated that instead the public funded the $16 million report.
Goodell responded last Tuesday by stating that the NFL donated the full $30 million toward concussion research, and reiterated that in a letter Thursday to all 32 owners. In the letter, Goodell broke down how the $30 million was dispersed:
“It includes $12 million that has been allocated through the NIH for two $6 million agreements dedicated to studies that define the long-term changes that occur in the brain after a head injury or multiple concussions. Boston University School of Medicine and the US Department of Veterans Affairs received $6 million for a study on CTE and post-traumatic neurodegeneration, while Mount Sinai Hospital received $6 million for a study on the neuropathology of CTE and Delayed Effects of TBI. Additionally, the NFL grant has funded six pilot projects totaling more than $2 million to provide support for the early stages of sports-related concussion projects.”
No question, the NFL deserves credit for its sizable donations. But you’ll notice that instead of funding the $16 million study led by Stern, the NFL chose to donate its money elsewhere.
This episode will do little to convince the public that the NFL is honest and forthcoming about concussion research and awareness, $30 million donation or not.
Third-rounders biding their bids
Patriots third-round pick Jacoby Brissett still hasn’t signed his rookie contract, and he isn’t alone. As of Friday afternoon, 206 of 253 draft picks had been signed (81.4 percent), but only 17 of 35 third-rounders (48.6 percent), by far the lowest percentage of any round.
What’s the holdup with third-rounders? As explained by Jason Fitzgerald of OverTheCap.com, the third round is the only round of the draft where the players can negotiate a higher contract.
All drafted players have a slotted signing bonus, but the base salaries can be negotiated. This year, once again, all first- and second-round picks have gotten the maximum base salaries. Picks in Rounds 4-7 get minimum salaries. But third-rounders don’t have a set number.
For example, Bengals linebacker Nick Vigil (drafted 87th overall) is making about $25,000 less on his four-year contract than Packers linebacker Kyler Fackrell (drafted 88th) and Seahawks running back C.J. Prosise (drafted 90th).
The draftees directly above Brissett (Prosise) and below (Cardinals cornerback Brandon Williams) have already signed their deals. But because Brissett plays a premium position, he likely is seeking extra money.
In 2012, third-round quarterback Russell Wilson negotiated for more money than the seven players drafted directly before him.
The NFL has set its officiating lineups for the 2016, and per footballzebras.com, the NFL has hired three officials, sent one into retirement (25-year head linesman George Hayward), and disbanded the officiating crew led by Pete Morelli, assigning him an entirely new roster. Morelli’s crew was responsible for the clock error at the end of the Steelers-Chargers game, a missed penalty that cost the Ravens a win against the Jaguars, and several noticeable mistakes in a Cardinals-49ers game . . . Interesting tweet from agent Malik Shareef, complaining about the rule that prevents rookies from practicing with their NFL teams until after their college’s graduation ceremony. The rule prevents rookies with June finals from participating in their team’s offseason program, and as Shareef noted, it especially hurts undrafted rookies looking for a shot. “I wonder if the ‘no workouts until your school’s academic schedule ends’ rule has affected [undrafted free agents]. No reps, no chance to get noticed.” . . . Jets receivers are boycotting organized team activities as a protest to the team’s hard-line stance with free agent quarterback Ryan Fitzpatrick. And the Bills lost star receiver Sammy Watkins for a few months to a broken left foot, first-round pick Shaq Lawson for five months to shoulder surgery, and the team is afraid that allowing the media to write about interceptions and dropped passes will hurt their players’ feelings. Just another offseason in the AFC East.
Bucking a trend
The Broncos drafted quarterback Paxton Lynch 26th overall in 2016, hoping that he can develop into a dependable starter. Denver, however, is hoping history doesn’t repeat itself; the quarterbacks it has drafted in the first round have all failed to live up to the hype.
Ben Volin can be reached at firstname.lastname@example.org. Follow him on Twitter @BenVolin. Material from interviews, wire services, other beat writers, and league and team sources was used in this report.