What's Next for Tom Brady & Deflategate? Court!

Media outlets around the country are buzzing about the most recent decision in the “deflategate” saga, and I thought it would be helpful to give a quick description of what is actually happening on the legal side, and to compile the relevant documents in one place.

Background

Originally, the NFL hired Ted Wells, a highly-accomplished New York white-collar lawyer, to investigate the allegations that the New England Patriots intentionally deflated footballs. This type of internal investigation is great for white-collar firms, as it requires a lot of manpower, and ultimately has an end: a report. On May 6, 2015, Mr. Wells produced a report titled “Investigative Report Concerning Footballs Used During the AFC Championship Game on January 18, 2015”…since that’s such a mouthful, I’ll go along with everyone else and call it “The Wells Report.” It concluded that it “is our view that it is more probable than not that Tom Brady was at least generally aware of the inappropriate activities of [the ‘deflators’] involving the release of air from Patriots game balls.”  

The Patriots were fined $1 million and were forced to forfeit a 2016 first-round draft pick, and a 2017 fourth-round pick. The Patriots organization did not appeal that decision. In addition to the team penalty, Tom Brady was suspended from the first four games of the coming season. On May 14, the NFL Players Association (NFLPA) appealed Brady’s penalty by sending this letter to the NFL.

The appeal was heard by the Commissioner of the NFL himself, Roger Goodell. On June 23, 2015, Goodell heard 10 hours of testimony, and the appeal was concluded. On July 28, 2015, Goodell upheld the four-game suspension, finding that Tom Brady had asked an assistant to destroy his old cell phone.

Prior to publicly issuing the July 28, 2015 decision, the NFL preemptively filed a federal court action seeking to confirm Goodell’s decision. I couldn’t find it elsewhere, so here is the July 28 federal court action filed by the NFL.

What’s Next?

So the NFL preemptively filed a suit to confirm the arbitration decision. The NFLPA has already made clear that it will appeal the decision.

A main purpose of arbitration clauses within Collective Bargaining Agreements ("CBA") is to avoid going to court. Basically, the parties agree that specific disputes will be resolved through arbitration, and as long as all the rules are followed, a court will not interfere. While federal courts don’t like to get involved, they can confirm an arbitration decision, which adds a layer of credibility and enforceability to an arbitrator’s decision. That’s what the NFL is trying to do.

The NFLPA will, at the very least, challenge the NFL’s confirmation action. In addition, the NFLPA could, and probably will, file a separate federal action, in a different court (I would suggest Massachusetts!). That action could ask a court to vacate the arbitration decision, alleging due process violations based on the following grounds:

  • The NFL had no policy that applied to players;
  • The NFL provided no notice of any such policy or potential discipline to players;
  • The NFL resorted to a nebulous standard of "general awareness" to predicate a legally unjustified punishment;
  • The NFL had no procedures in place until two days ago to test air pressure in footballs; and
  • The NFL violated the plain meaning of the collective bargaining agreement.

If a Court agrees with the NFLPA, and finds that the NFL didn't follow the CBA or its own rules, it could vacate the decision which would effectively reverse the four game suspension. 

The next steps will be for the NFLPA to answer the NFL’s complaint, and then either file a separate action, or counterclaim asking the Court to vacate the decision. I’ll try to update with links if anything happens!

 

[UPDATE: The NFLPA filed a Petition to Vacate in Minnesota - here's the filing.]

 

 

 

 

 

 

Great Result on an Albany County DWI Refusal Case

I was delighted to see the following review on AVVO.com from a satisfied Albany County DWI client. Albany County is one of the more challenging places to get a DWI in New York - due to the volume of DWI cases in the Capital District, the District Attorney has established a comprehensive policy for plea bargaining. In virtually all cases, the Assistant District Attorney will fall back on the DA's policy.

For DWI defense lawyers, the DA's policy provides a framework to advise our clients: if the client refused to take a breathalyzer, we can confidently tell them that the DA's policy is for them to take a plea to a misdemeanor common law DWI, or go to trial. Similarly, if the client took the breathalyzer, and blew over a .14, we can point to the DA policy provision that mandates that they plead to the misdemeanor. The DWI policy addresses most circumstances, from repeat offenders to DWI accidents.

In this case, my client had unique circumstances that I presented to the District Attorney's office. They were kind enough to listen, and we were able to negotiate a deal that addressed the client's unique circumstances. Based on the review copied below, the client was pleased with the results.

This was a very rare case, and I have to disclaim that "Prior Results Do Not Guarantee a Similar Outcome."   That said, I always try to take a personal approach to my cases, and in this instance, it worked out. 

Here's the review:

A+ Service. Highly Recommended.

Mr. Breslin is friendly, professional, and was the essence of a zealous advocate in my DWI charge/proceeding. His rate was very reasonable and he was VERY accessible (all of my calls were picked up and all emails that I sent him were answered within the hour).

Before retaining Mr. Breslin I consulted with 6 of the most reputable local DWI attorney's (all of whom gave me a similar assessment of my initial case and chances in court to the assessment that Mr. Breslin gave me). My chances at any sort of reduction of my DWI charge we're slim to none based on the facts of my case. I decided to retain Mr. Breslin because despite giving me the same bleak chances that the other 5 attorney's gave me, Mr. Breslin seemed like the only one who wasn't going to "phone it in", and actually submit vigorous arguments on my behalf, no matter how weak. In other words the choice to retain Mr. Breslin was a personal one, as all attorney's were qualified from a legal perspective.

As you can probably tell by the glowing lead-up in this review, Mr. Breslin negotiated a plea deal on my behalf that, based on, all research I can find, isnt available to anyone else in my situation in the state of New York. This result was achieved all the while keeping me informed and in the loop of all processes and developments along the way. I'm aware that these results aren't typical, and my case does not necessarily mean a similar outcome for future clients, but I was very happy with the services rendered and would retain him again for any criminal matters going forward (hopefully that won't be necessary :) )

New York Crosswalk Laws

On February 12, 2015, a garbage truck struck and killed a four year old in a crosswalk.  This tragic accident on Central Avenue in Albany should be a reminder to everyone to pay attention to pedestrians and crosswalks, and for the police and upstate New York municipalities to crack down on crosswalk violations. 

Having worked in downtown Albany for the past several years, I am consistently astonished by drivers' failure to obey the enormous yellow pedestrian crossing signs. If there is no signal, the pedestrian in a crosswalk ALWAYS has the right of way, and cars MUST yield to allow them to cross. It's that simple. Notwithstanding the law, on a daily basis I see CDTA buses, Albany Police, New York State-registered vehicles, municipal vehicles, and of course everyday drivers ignoring pedestrians in well-marked crosswalks and driving right along. 

I grew up in Berkshire County, Massachusetts. In the late 1990's, there was an enormous crackdown on crosswalks, and it worked. Towns like Lenox, Great Barrington, and Stockbridge became significantly more pedestrian-friendly, and drivers quickly learned to take crosswalks seriously. This has stuck with me, even though I'm a certified New Yorker, and I'm still astonished by local drivers' failure to obey the law - and seriously, when was the last time you saw someone in Upstate New York get pulled over for not yielding to a pedestrian?! 

Like Massachusetts, New York has strict crosswalk laws. In many parts of the Capital District, unfortunately, there appears to be no enforcement. Today (2/13/15), for example, I walked four blocks to grab lunch, using several crosswalks. While trying to cross Pearl Street at a well marked crosswalk, at least fourteen drivers ignored the massive yellow signs before I could cross. No one yielded, or even acknowledged me or the person trying to cross from the other side. 

Drivers that fail to yield the right of way face three points on their licenses, a hefty fine, and a state-mandated surcharge. All said and done, around $300 + 3 points.  Here are the relevant New York Vehicle and Traffic laws (VTL) regarding pedestrians and crosswalks:

  • VTL § 1150. Pedestrians subject to traffic regulations
    • Pedestrians shall be subject to traffic-control signals as provided in section eleven hundred eleven of this title, but at all other places pedestrians shall be accorded the privileges and shall be subject to the restrictions stated in this article.
  • VTL § 1151. Pedestrians' right of way in crosswalks
    • (a) When traffic-control signals are not in place or not in operation the driver of a vehicle shall yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk on the roadway upon which the vehicle is traveling, except that any pedestrian crossing a roadway at a point where a pedestrian tunnel or overpass has been provided shall yield the right of way to all vehicles.
      (b) No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impractical for the driver to yield.
      (c) Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.
  • VTL § 1151-a. Pedestrians' right of way on sidewalks
    • The driver of a vehicle emerging from or entering an alleyway, building, private road or driveway shall yield the right of way to any pedestrian approaching on any sidewalk extending across such alleyway, building entrance, road or driveway.
  • VTL § 1152. Crossing at other than crosswalks
    • (a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.
      (b) Any pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided shall yield the right of way to all vehicles upon the roadway.
      (c) No pedestrian shall cross a roadway intersection diagonally unless authorized by official traffic-control devices; and, when authorized to cross diagonally, pedestrians shall cross only in accordance with the official traffic-control devices pertaining to such crossing movements.
  • VTL § 1156. Pedestrians on roadways
    • (a) Where sidewalks are provided and they may be used with safety it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway.
      (b) Where sidewalks are not provided any pedestrian walking along and upon a highway shall when practicable walk only on the left side of the roadway or its shoulder facing traffic which may approach from the opposite direction. Upon the approach of any vehicle from the opposite direction, such pedestrian shall move as far to the left as is practicable.

If you are injured in a crosswalk, or as a pedestrian under any circumstances, it is important to contact an attorney as soon as possible to protect your rights. Call Sam Breslin at 518-650-3733 or visit www.breslinlawgroup.com