It’s probable that Tom Brady is at least generally aware of what he’s up against with the NFL disciplinary process and his sponsorship deals following a damning report on Deflategate.
And while it's so far unclear what type of discipline the NFL may mete out, several top lawyers have similar advice for the Patriots quarterback: Admit nothing and fight any charges as hard as possible.
While there is no precedent for this case, NFL Commissioner Roger Goodell, who indicated the league will consider “possible disciplinary action,” has considerable power and latitude under the “integrity of the game” clause in player contracts.
“I could see very severe penalties here,” said Brian Socolow, a partner at Loeb & Loeb, which has a large sports law practice. “If someone is jeopardizing the integrity of the game, that is a very serious issue.”
While the case against equipment men Jim McNally and John Jastremski is bolstered by damning text messages, the case against Brady — who investigator Ted Wells mentioned 378 times in the report — is more of inference than evidence.
“This report just doesn’t prove anything (against Brady). What makes the most sense here, why would they (McNally and Jastemski) do that?” asked Socolow. “Someone told them to do that or they thought someone wanted it that way.”
But the standard of proof in NFL disciplinary proceedings is considerably lower than those required in court — criminal or civil.
"He should say something like ‘As a world class athlete I’m trying to win every game. If any rules were broken, I apologize.'"
Joe Tacopina, whose clients have included embattled Yankee Alex Rodriguez and disgraced former NYPD Commissioner Bernie Kerik, called the report “pretty damning.”
“There’s no way the (equipment man) would take it upon himself (to deflate the balls),” Tacopina said. “The only person to have impact on that (decision) — if it was deliberate — was the quarterback.”
Still, Tacopina said he would advise a client to fight the charges — and resist any urge to apologize.
“If he were to apologize, that could lead to a whole host of things,” he said. “He should say, ‘You have no evidence against me because I didn’t do anything.’”
The equivocal language of the report — which concludes Brady was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls — creates a lot of latitude for Goodell.
“It appears (report author Ted Wells) was only acting as a fact finder and wasn’t going to make a credibility determination,” said Jonathan Israel, a partner at Foley and Lardner, which is also a top-tier sports law firm. “It creates a lot of wiggle room for the commissioner on how he wants to decide here.”
But, Israel said, "it really hurts him from the PR perspective."
Indeed, public relations experts are less concerned with a possible fine or suspension than with a hit on the carefully cultured Brady brand that could affect his $7 million in endorsements each year.
“He’s positioned himself as a perfectionist, he’s clearly spent a tremendous amount of time on his brand,” said Ronn Torossian, CEO of 5WPR, one of the top 20 public relations firms in the country.
Torossian suggests a response as oblique as the charges in the report.
"I wouldn’t do a mea culpa. This is not steroids; this is not drug testing (violation)," Torossian said. "If I were his PR, he should say something like ‘As a world class athlete I’m trying to win every game. If any rules were broken, I apologize.'"
Whether that satisfies the league, it’s the sponsors and the court of public opinion hold sway.
Public relations guru Mike Paul, known as "the Reputation Doctor," said the difference is that sponsors are not interested in ticket sales as much as product sales — and likely reflect prevailing public opinion better than the will of the league's owners or their commissioner.
“The cover-up is worse than the crime,” Paul said. “Sponsors don’t like that.”
Fans may also perceive that the brunt of blame will fall on the blue-collars equipment workers and leave Brady relatively unscathed.
“If they (the workers) get their hands slapped before Brady does, that’s not going to sit well with the public,” Paul said.
But that will not affect the league all that much, he said.
“The owners know we enjoy the sport more than [we dislike] anything they [the players] do on the field,” Paul said.
Paul said the path to redemption is “to put another positive in our minds to defeat the negative.”
But, he said, “It’s not going to happen in the off-season.”
Torossian concurred on the timing.
“It’s damaging in the short term, but it’s not a knockout punch,” Torossian said. “It’s not insurmountable.
“It’s the equivalent of a sprained ankle which has him listed as probable for the next game.”