John Dowd, attorney, former special counsel to ex-MLB commissioner A. Bartlett Giamatti and author of the Dowd Report that led to Pete Rose’s lifetime ban from baseball, joined the Dale & Holley show Wednesday to give his take on Tom Brady‘s situation. To hear the interview, go to the Dale & Holley audio on demand page.
Dowd read the Wells Report and said he had trouble nailing down what the report itself was saying.
“As they say in the ‘Seinfeld’ show, it’s all about nothing,” Dowd said. “I just could not figure out what it was about, and I read the Wells Report, and I read the subsequent studies that sort of shredded the science in the report, but I couldn’t find anywhere where Tom Brady directed anybody to do anything. So I’ve sort of been troubled watching this thing and how it’s been put together and so I’ve not seen a basis for the punishment of Tom Brady, and I didn’t think the Wells Report was very well done.”
He also said the way the league has thus far handled the issue of Brady destroying his cell phone was an “ambush,” and that the NFL “blindsided” him.
“[Brady] explained, as I understand it, that he couldn’t turn over his phone, but he would do everything else to cooperate and that was apparently acceptable to Wells,” Dowd said. “I mean, Wells noted in his report it was not helpful, but he didn’t charge him or recommend he be charged with failing to cooperate with the commissioner, which can be a big deal. You don’t cooperate with the commissioner in baseball, and you’re going to sit down, you’re not going to play ball, so it’s a very serious charge, which was not made. So Tom went up on appeal and continued to cooperate, continued to try to get the messages. They had already concluded that they had enough so I don’t understand.
“And apparently in some conversation, he described how his assistant handled his phone, and my own theory is that they had taken such a beating on the Wells Report, that it had been shredded by all kinds of experts, that they had to grab something to save face. And as you know, this commissioner has had great difficulty with his disciplinary decisions, and so that’s just my theory. I don’t know if that’s a fact or not, but I do know one thing. It was very unfair to cite that phone and its destruction as evidence of consciousness of guilt or obstruction of justice. He was never charged with that, and fair play and due process require that you receive notice of that and you have a chance to answer that, so that’s what struck me.”
Dowd noted that everything regarding the phone read as though the NFL was just looking to find a way to get to Brady.
“It appears that they were trying very hard to find something adverse to Tom, and because of the weak standard, the weak facts, the lousy science, etc.,” he said. “The other thing, if I were commissioner, or counsel to the commissioner, and given how controversial that Wells Report was, I would make sure the public got an answer and a response about all the science, but it doesn’t look like Goodell looked at that critically at all, and that’s troubling to me.
“The one thing we did in the Rose case was everything we did that was recorded was handed over to the Rose lawyers and to the public, including all of my notes and all my colleagues’ notes. There was nothing that wasn’t put out there, because a lot’s riding on it, particularly the confidence of the public and the fans who are so important to this game.”
Dowd took issue with the fact that the standard for this case is “more probable than not” when his report was based on the standard of “beyond a reasonable doubt” as well.
“The idea that you would injure someone’s career or affect it in some way, some adverse way based on more probable than not is nonsense,” he said. “I don’t know such a standard in the law or anywhere else so that was very troubling to me.”
He added that as he understands it, “Every team in the league was doing what the Patriots were doing.” Dowd offered that if the league is really this concerned about how footballs are taken care of, it should follow in baseball’s footsteps and have officials be the only ones touching the balls.