The Tom Brady legal victory is being criticized, lauded, and talked about by millions in our fanatical football country. Unlike the vast majority of fans—and being a nerdy insurance lawyer—I read the report. While doing so, I was struck about the similarity between the court’s reasoning into the unfairness of Brady’s proceedings and altered insurance engineering and estimate reports.
Superstorm Sandy litigation showed that nobody should trust an insurance company to provide an honest engineering or estimate of damage report. In Altered Engineering Reports Must Be
Disclosed–Sandy Flood Judge Requires Transparency, and Are Baseless and Outcome Oriented Engineering Opinions the Normal State of Affairs in Property Insurance Investigation, I noted that the only manner to determine if any draft report has been fairly altered by another is to turn over the edits and drafts. Then, the people doing the editing should have to explain their role in formulating the final opinion compared to the author’s original draft. Otherwise, truth of whether the report was changed to better reflect honest opinions and findings or whether a more clandestine reason can never be determined.
Brady was investigated by a law firm hired by the NFL and the NFL’s General Counsel Jeff Pash. Before the law firm issued its final report, it was turned over to Pash who "edited" the report. Brady was denied the edits and the ability to confront the General Counsel at Brady’s arbitration hearing. Interestingly, the so called "neutral" arbitrator was the NFL Commissioner who had previously lauded the NFL investigation.
The trial judge saw through this Star Chamber charade concluding:
"The Court finds that Commissioner Goodell’s denial of Brady’s motion to compel the testimony of Mr. Pash was fundamentally unfair….
Given Mr. Pash’s very senior position in the NFL, his role as Executive Vice President and General Counsel, and his designation as co-lead investigator with Ted Wells, it is logical that he would have valuable insight into the course and outcome of the Investigation and into the drafting and content of the Wells Report…."
I am not saying Tom Brady conspired with the ball boys to deflate footballs. I am not saying he didn’t. There is no evidence to suggest that he did, except that he destroyed his cell phone containing his text messages. I can think of tens of millions of reasons Tom Brady may not want anybody to read his personal text messages.
The important point is that everybody who has been the subject of an investigation with substantial impact upon them should ask for the drafts of investigative reports. People should ask how it was honestly made and by whom. Those making them should keep records so that if they are altered, the changes are transparent and honestly explained as making the report better, more accurate and the most honest reflection of the author’s views.
In the Tom Brady case, many may question why the NFL commissioner would not simply turn that information over and allow Brady’s lawyers to examine Pash about the changes. Most probably assume that the commissioner had something to hide for the same reason many probably assumed Tom Brady had something to hide by destroying his phone and text messages.
Similarly, everybody probably assumes why insurance companies, their investigators and estimators hide, conceal, and destroy their altered reports….they have something to hide.
Positive Thought For The Day
The price of success is hard work, dedication to the job at hand, and the determination that whether we win or lose, we have applied the best of ourselves to the task at hand.