A footnote buried in the NFL's 20-page Tom Brady decision suggests they could have gotten his text messages anyway

On Tuesday the NFL announced its decision to deny Tom Brady’s appeal and uphold its four-game suspension for his involvement in Deflategate. The biggest piece of new information to come out of the appeal is that, according to the NFL’s official decision, Brady destroyed his mobile phone on or around March 6, the same day that he was scheduled to meet with the NFL.

Brady had been using the phone since November 2014, and during the four-month span had exchanged some 10,000 text messages, including messages with the two employees implicated in the deflation scandal. Although Brady claimed he always destroys old mobile phones to maintain his privacy, the NFL still cited this as a major factor in their decision to uphold the four-game suspension.

Here’s what the decision said about Brady’s mobile phone:

“Mr. Brady’s direction that his cell phone (and its relevant evidence) be destroyed on or about March 6 is very troubling. Rather than simply failing to cooperate, Mr. Brady made a deliberate effort to ensure that investigators would never have access to information that he had been asked to produce. Put differently, there was an affirmative effort by Mr. Brady to conceal potentially relevant information and to undermine the investigation.”

But as ProFootballTalk’s Mike Florio and others have pointed out, there’s a small footnote hidden deep within the decision that suggests the NFL could have still attempted to access the relevant Brady texts even without Brady’s phone. Although the phone was destroyed, Brady’s lawyers offered to turn over all of the numbers Brady had texted during that four-month span. With this information, the NFL could have accessed the text messages by asking these individuals to comply with the investigation.

Here’s the footnote, from page 12 of the decision:

“After the hearing and after the submission of post-hearing briefs, Mr. Brady’s certified agents offered to provide a spreadsheet that would identify all of the individuals with whom Mr. Brady had exchanged text messages during [the relevant time] period; the agents suggested that the League could contact those individuals and request production of any relevant text messages that they retained. Aside from the fact that, under Article 46, Section 2(f) of the CBA, such information could and should have been provided long before the hearing, the approach suggested in the agents’ letter — which would require tracking down numerous individuals and seeking consent from each to retrieve from their mobile phones detailed information about their text message communications during the relevant period — is simply not practical.”

Now, the NFL doesn’t have the jurisdiction to subpoena the phones of every individual with whom Brady communicated, but — as Brady’s lawyers suggested — it could have reached out to each individual and ask them to turn over any information relevant to Deflategate.

As Florio points out, 10,000 text messages in a four-month span works out to around 83 texts per day, which would presumably have come from fewer than 83 people. The NFL thought this task was “simply not practical,” but expect Brady’s camp to use this argument when this case goes to federal court soon.

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