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The NFL’s Kangaroo Court Won’t Stand in Federal Court

Investigator Ted Wells asserted attorney-client privilege a half dozen times during his testimony during the Deflategate appeal to avoid discussion of matters between him and the National Football League, which he now terms his client. Simultaneously, Wells stressed his complete independence from the entity that readers discovered he represents as an attorney.

Is it any mystery why the NFL sought to keep the transcript of Tom Brady’s Deflategate suspension appeal secret?

The press latched on to Wells’ admission that the league has paid him at least $2.5 to $3 million. The courts likely fixate on the inherent conflict between the lawyer’s claim of independence and his continued service as an attorney for the NFL—with the secretiveness that relationship entails. In the transcript, Ted Wells admits to refusing to share notes from his Deflategate interviews with Tom Brady and relies on attorney-client privilege as a sonic screwdriver to help him escape uncomfortable situations.

Brady lawyer Jeffrey Kessler forces Wells to admit, obvious to everyone in the room, that a law-firm colleague who played an instrumental role in crafting the Wells Report cross-examined Tom Brady on behalf of the NFL during the hearing. When Wells rationalizes it as “efficient” to allow one of the impartial Deflategate investigators working for his law firm to take an advocacy role in the proceedings, Daniel Nash, an NFL attorney cites attorney-client privilege to derail the questioning. The situation becomes a parody of itself when Gregg Levy, in essence a colleague of Nash’s who also works as a league lawyer, sustains Nash’s objection. Coming within the context of an appeal overseen by NFL Commissioner Roger Goodell on a decision by NFL Commissioner Roger Goodell only serves to bring the surreal scene further into another dimension of The Twilight Zone.

Beyond the Newspeak that witnesses Wells assert his independence in the same breath that he invokes attorney-client privilege to dodge questions about the investigation and the NFL, he concedes that he conducted his investigation, repeatedly characterized by the NFL as independent from it, alongside NFL executive vice president and general counsel Jeff Pash. “I immediately telephoned Mr. Pash because I had not been told that we were going to be doing it jointly,” Wells says about hearing that he would work with Pash on the investigation. “And Mr. Pash explained to me that I would be the independent investigator, that he would be there to help facilitate on procedural-type issues and dealing with the Patriots, but that we were going to run it the same we had run the Dolphins investigation, which was I would be the independent investigator with my team.”

We were going to run it? Jointly? Help facilitate?

Surely this rates elaboration and not the brushoff of attorney-client privilege.

Brady lawyer Jeff Kessler compels Wells to admit under questioning that he permitted Pash, a man whom Wells cites attorney-client privilege to evade questions about, to give feedback on a draft of the Wells Report before its release.

Kessler: Did he provide written or oral comments?
Wells: Yes.
Kessler: Okay. Were they written?
Wells: Not to my knowledge, but the truthful answer is he didn’t provide any to me, okay.
Kessler: Did he provide it to another member of your team?
Wells: I believe so.

We don’t know the nature of Pash’s feedback and what changes it made to the report. Wells insists the comments “couldn’t have been that big a deal.”

Two pages earlier in the transcript, Kessler outlined the significance of Pash, a high-level league employee identified at the early stages of the investigation as Wells’ partner in the enterprise, vetting the report before publication. “Mr. Wells just testified he was independent and the NFL was not his client,” Kessler notes. “Therefore, Mr. Pash’s communications with him could not be privileged under any possible application of the privilege, unless Mr. Wells wants to change his testimony and state that the NFL was his client in this matter, which would mean he is not independent.”

In other words, you can’t have it both ways. Alas, Ted Wells sought to have it one way—his way. He played prosecutor and judge, independent inspector and Roger Goodell’s lawyer, an advocate for openness in the investigated and for invoking attorney-client privilege for the investigator, a demander of the husband of a supermodel’s phone and a refuser to let others see his interview notes.

This flies in a kangaroo court. This is Ted Wells’ demise in a federal court.

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