Saints Sinners & Serial Killers- Episode #5 Season #2 Deflategate Part 2

In this episode, Part 2 of Deflategate, as Sherman and Wedge take you inside one of the most sensational sports scandals in history as told in their massive bestseller 12: The Inside Story of Tom Brady’s Fight for Redemption. 

Transcript

Voice Over: [00:00:04] Welcome to season two of Saints, Sinners and serial killers with co-hosts New York Times, best selling authors and renowned investigative journalists Casey Sherman and Dave Wedge. In this episode, part two of Deflategate, Sherman and Wedge take you inside one of the most sensational sports scandals in history, as told in their massive bestseller. 12. The Inside Story of Tom Brady's Fight for Redemption. And Now Casey Sherman and Dave Wedge.

Casey Sherman: [00:00:40] The Wells report could not offer a definitive answer, but concluded that Tom Brady was most likely involved in Deflategate. Investigators pointed to the volume of telephone and text conversations between TB12 and John Yastremska right after the Deflategate story broke. Neither had communicated by phone or text in the six months prior to January 20 15. Ted Wells also found it suspicious that Brady had invited just Zamsky to a private meeting in the quarterback room. It was the first such invitation in Just Stream Sky's 20 year career with the team. Wells believed that the two equipment guys were merely lackeys who would not consider deflating balls without Tom Brady's knowledge. When TB12 sat down with investigators, he denied having any involvement in deliberate efforts to deflate footballs and claim that he did not know McNally's name or what his role was regarding game day footballs. Brady's testimony contradicted the fact that he was present when McNally received the autographed jersey and footballs and just screamed his claim that he had spoken to Brady about McNally. Was the quarterback misremembering, or was he lying? Ted Wells believe that Brady wasn't telling the truth.

Casey Sherman: [00:02:08] The report also noted that Brady had refused to turn over his cell phone to Ted Wells. This was on the advice of his agent, Don Yee, despite Heather McPhee's plea that Brady cooperate with investigators. The report was a bombshell and reaction came in swiftly from Brady's fellow NFL players. Colts linebacker Eric Walden said it was gross that Brady resorted to cheating, but also acknowledged that Brady and the Patriots had put a whooping on his team during their march toward the Super Bowl. Former Broncos star Shannon Sharpe fired off a tweet demanding a severe punishment against the Patriots because Spygate taught them absolutely nothing about adhering to the rules. Tom Brady kept a low profile on the day that the report was released, but he soon emerged for a speaking event at Salem State College with veteran sports reporter and friend Jim Gray like an embattled head of state. The Patriots quarterback rode a helicopter to campus where scalpers were getting big money for tickets to hear him offer his first public words since the release of the Wells report.

Tom Brady: [00:03:25] We're going to deal with it and then we're going to move on with the evening. What is your reaction, Tom, to the Ted Wells report? See, I can't usually say those things. But I don't have really any reaction to my our owner commented on it yesterday, and it's only been 30 hours, so I haven't had much time to digest it fully. But when I do, I'll be sure to let you know how I feel about it.

Dave Wedge: [00:03:56] And everybody else. Five days after the release of the Wells report, the NFL announced that Brady would be suspended without pay for the first four games of the 2016 season. In a letter to Brady, Troy Vincent, a former player and one of Goodell's top lieutenants, told the quarterback that there is substantial and credible evidence to conclude you, or at least generally aware of the actions of the Patriots employees involved in the deflation of the footballs, and that it was unlikely that their actions were done without your knowledge. For Brady, the bleeding didn't stop there. Perhaps the worst moment for him came when Robert Kraft, who'd been like a second father to him, gave up the team's public fight against the NFL and accepted Goodell's four game suspension of Brady. The Patriots were also slammed with a $1 million fine, the biggest in league history.

Robert Kraft: [00:04:52] I'm going to accept. Reluctantly, what he has given to us and not continue this dialogue and rhetoric. We won't appeal. No. A lot of Patriot fans are going to be disappointed in that decision, but I hope they trust my job. No. I really feel at this point in time. Taking this off the agenda. This is the best thing for the New England Patriots. For fans and the NFL.

Casey Sherman: [00:05:29] Robert Kraft's announcement blindsided his star quarterback. Brady watched the news conference along with millions of others on television. He was devastated and angry. Brady grabbed his cell phone and punched in the contact number for DeMaurice Smith. “What the fuck!” Brady shouted over the phone. Why am I not getting the support I deserve on this thing? Smith tried to console his friend and client. No matter what Kraft says, it has no bearing on our appeal of the four game suspension, he told Brady. We'll be ready for that. Trust me. The man hailed as arguably the greatest quarterback ever to play the game had to put his faith in another team. One of battle-tested attorneys in a war against perhaps the most formidable opponent of his life, the NFL.

Dave Wedge: [00:06:27] But there were big problems with the Wells report. Wells made no effort to interview Colts linebacker duquel Jackson, who intercepted Brady in the AFC Championship Game and was said to have given the deflated ball to a member of the Colts equipment staff throughout the NFL investigation. No one reached out to me. No one asked me about the football, Jackson said in a 2018 radio interview. Not a peep. Silence. I would have loved to catch them in the act because we got our tails kicked. But no, I had no idea. There was also the disturbing case of Jeff Pash, the NFL executive and labor lawyer who helped negotiate the collective bargaining agreement with the NFLPA in 2011. He worked side by side with Ted Wells on the so-called independent investigation. Pash had refused to correct misinformation that had been sprinkled across the media from league sources. Most notably, ESPN reporter Chris Mortensen's false claim from January later proved not to be true that the league found that 11 of the New England Patriots 12 game balls were inflated significantly below the NFL's requirements. The truth, according to the Wells report, was that only one Patriots football had tested below the league threshold. Demaurice Smith was ready to defend his union's highest profile member. The NFLPA leader had begun work with the AFL-CIO on an amicus brief for Brady that they filed with the U.S.

Dave Wedge: [00:07:51] Court of Appeals for the Second Circuit. In the 15 page document. The labor union argued that Brady's suspension should be vacated because Roger Goodell had failed to follow basic procedural fairness and acted arbitrarily as an employer seeking to justify his own disciplinary decision rather than as a neutral arbitrator. It was a fancy way of saying that Goodell had presided over a kangaroo court in which he served as judge, jury and executioner. Smith also worked the phones, connecting with several influential team owners, including John Mara of the New York Giants. What are we doing? Smith Asmara? If you want to find them, find them. But now we're talking suspensions. Smith didn't believe Brady was guilty of any wrongdoing, but even if that was the case, it was a minor infraction at best. And now it was being treated as a capital offense by Goodell and his minions. He walked Mara through the case. There were allegations that there were minute differences in a limited number of balls in the first half of a playoff game, where in the second half the opposing team got beat like a drum with balls that were properly inflated. Again, what are we doing? Smith said. Mara and the other owners, except for Kraft, continued to back Goodell's decision.

Casey Sherman: [00:09:16] Brady's appeal was set to be heard in late June 20 15. Demaurice Smith and his team had less than two months to prepare. The lawyers spent nearly every waking moment on the case, which meant that they would spend most of their time in the office and less time at home with their families. The late night strategy sessions were a free flowing forum for ideas and debate. They 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. One major issue that they would have to deal with was the fact that Tom Brady got rid of his broken Samsung phone and replaced it with a new iPhone six. 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. Brady's wife, Gisele Bundchen, had been destroying her phone for years ever since the phone hacking scandal erupted in Britain.

Casey Sherman: [00:10:31] Heather McPhee told us she's an international supermodel and had knowledge of ways to protect herself from having her photos and her 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 from the 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 13 year old kidnapping and murder victim. Ironically, in the court battle that followed Brady's appeal, Brady's personal emails, which were among 40 thousand pages of documents submitted by the NFLPA, were revealed and released 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 seven or eight years, he Peyton has two, Brady wrote. That's the final chapter game on.

Dave Wedge: [00:11:55] It was now game on for Brady and his legal team. No. 12 arrived at NFL headquarters at three forty five Park Avenue in New York on the morning of June. Twenty third twenty fifteen. He stepped out of a black Chevy suburban, smartly dressed in a dark suit and appearing weary. A couple of Patriots fans fought for the star quarterback's attention as he walked across the sidewalk and through the media horde. Brady smiled graciously, but Heather McPhee had her game face on. The hard nosed attorney stiff armed an autograph hound to clear a path so our client could enter the building. Once inside, Brady and his attorneys were led to a basement hearing room to McPhee. Holding the hearing in a cramped basement was an attempt at intimidation by the NFL. Their state of the art conference room on the sixth floor would have easily accommodated us, McPhee recalled in a series of interviews with us. It's hard not to read symbolism into the location they chose. After entering the crowded conference room, Commissioner Goodell addressed both sides. We all know why we're here this morning. This is a 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 am not an attorney.

Casey Sherman: [00:13:13] Exactly. The more 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 now 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 Rice appeal, had helped establish NFL free agency and had even represented Bill Belichick back in 2000, when the coach sued the NFL and the New York Jets to break his contract and to go with the Patriots. Kessler was fighting for New England once again, and this time he had plenty of ammunition to defend Brady. You didn't have any witnesses yourselves. You address Goodell. You're essentially relying on Wells 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's 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. Kessler, in a sense, 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 in the inflation of footballs. Kessler argued, is what he cares about is how they feel in his hand, not how they are inflated. Brady's lawyer was playing word games here in an attempt to suggest that although No. 12 liked a softer football, he had no knowledge of the exact air pressure of each ball. He also said that Tom's punishment 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 even 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 that it was happening.

Dave Wedge: [00:15:36] 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 as 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, a partner of Ted Wells questioned Brady about his cell phone. Were there any emails 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? Absolutely not, Brady replied. The quarterback had provided the NFL phone records that showed that he had sent or received nine thousand nine hundred text messages over an eighty three day period following the initial Deflategate reports. It's not clear what percentage of those text messages had focused on the growing crisis and whether that level of activity was deemed 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 threw the use of several slides, called the conclusions of the Wells report nothing short of improper.

Casey Sherman: [00:17:08] When it came time to question Wells himself, Kessler asked the lead investigator why he was so quick to dismiss Brady's claims 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 Brady's testimony based on my assessment of his credibility and his refusal or decision not to give me what I had requested in terms of responsive documents. Wells testified. I will say that Mr. Brady, in my almost 40 years of practice, I think that was one of the most ill advised decisions that I have ever seen because it hurt how I viewed his credibility. As Heather McPhee had predicted, Don 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 objectivity was clouded by anger toward yee and by association. Tom 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 massive retainer paid by the NFL. I do the best job that I can! Wells replied. The appeal hearing lasted 10 long, grueling hours, and like Brady's Patriots teammates in the Super Bowl, his legal team felt that they had left everything on the field. But with Roger Goodell in charge, the field was anything but level.

Dave Wedge: [00:18:57] Five days after the hearing, the NFL announced that it would not reduce the quarterback's four game suspension. Roger Goodell called Brady smashing of a 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 six 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. Still, 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. 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 in New York.

Casey Sherman: [00:20:33] Now, 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 there were no cameras 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 Don Yee in the second row. Rosenberg's image of TB12 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 Tom 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 on September 3rd. Twenty fifteen Judge Berman erased Tom Brady's four game suspension, which was a stunning rebuke of 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. Tom Brady had won the war, or so he thought.

Dave Wedge: [00:22:32] Demaurice Smith and Heather McPhee were worried there was an old clause in the league's collective bargaining agreement with the players called Article Forty Six, which gave the commissioner power to impose discipline and handle any appeal regarding conduct detrimental to the integrity of the game. In short, the clause gave Goodell the authority to punish any player that can trust him. Smith hated Article forty six, but for now it was the law of the NFL land and that spelled bad news for Tom Brady. In April 2016, sixteen the U.S. Second Court of Appeals ruled to reinstate Brady's four game suspension. The court found that Goodell properly exercised his broad discretion under the collective bargaining agreement and that his procedural rulings were grounded in that agreement and did not deprive Brady of fundamental fairness. Article forty six had taken down TBE 12. The sports world was stunned and Patriots fans decried Deflategate as a witch hunt. Behind the scenes, Brady and DeMaurice Smith tried to negotiate a settlement with the NFL that would have overturned the suspension. The quarterback even offered to pay a $1 million fine, but Goodell wanted more.

Casey Sherman: [00:23:47] Goodell demanded that Brady's state publicly that former Patriot equipment guys just Stransky and McNally had purposely tampered with the footballs, even without his knowledge. Tom said, No, there's no way I'm going to ruin these guys for something I believe they didn't do. He told him or Smith. Tom Brady could have had his four game suspension overturned if he had implicated the equipment, guys. Once again, Tom Brady said no instead, and for the first time since the start of the 2001 regular season and able bodied Tom Brady would not be taking his rightful place behind center for the New England Patriots. He'd missed the twenty eight season with a torn ACL and that had been among the most difficult and painful periods of his life. The four game suspension meant that Brady would have to forfeit two hundred and thirty five thousand dollars in salary and more devastating to the quarterback. He would be locked out of Gillette Stadium and not allowed to have any contact with any member of the Patriots organization. Brady had led the most successful franchise in the modern era of professional football, and now he was deemed persona non grata in Foxborough.

Dave Wedge: [00:25:11] He tried to appeal the decision, but the petition was denied. Brady's only other option at that point was to take the fight all the way to the United States Supreme Court. This would be nothing short of a Hail Mary pass and would mean more time in law offices and in court, and less time on the field at Brady's age. It was not a risk he was willing to take. In an interview with us, Tom Brady maintained the moral high ground with regard to his suspension and those who had conspired against him. I'm a positive person. I just let those things play out, he said. I don't want to say anything negative about anyone at this point, and I'm not going to and never will. I'm just going to focus on what I need to do, which is just get ready to play. Things didn't work out the way that I wanted them to. So I had to sit out the four games, but I tried to take advantage of them and do things that I wouldn't normally get a chance to do. Like spending time with my family, my wife and my parents. That was the best thing about it was just having more opportunities with them.

Casey Sherman: [00:26:13] After being betrayed by his coach, Bill Belichick, whose misdeeds during Spygate had put a target unfairly on the back of his quarterback and his team owner, who caved to league pressure and by the NFL itself. Tom Brady found strength and solace in his family and knew right then that his days inside Fortress Foxborough, where treachery had become commonplace, would soon be over. The rest is history or history still to be written by the now seven time Super Bowl winner, who believes that he still has something to prove. As Tom Brady said as a member of the Tampa Bay Buccaneers after beating the Kansas City Chiefs for the Lombardi Trophy, champions live forever.

Tom Brady: [00:27:03] With all that you've done. Where does this rank, is this the crowning achievement? I'm not putting any making any comparisons. I know be down here and experiencing it with this group of guys is every year is amazing. And this team is world champions forever. You can't take it away from us. So. Thank you, guys. Thank you all.

Voice Over: [00:27:28] Saints, Sinners & Serial Killers is a joint production of MuddHouse Media and Fort Point Media. Produced and edited by Mike Gioscia. Studio space provided by worklocalma.com. Original Music by Chris Speargun. For more from the MuddHouse Media Podcast Network, visit muddhousemedia.com, and for the latest on their podcasts and all of the writing and film projects of Casey Sherman and Dave Wedge, visit fortpointmedia.com.