When NFL commissioner Roger Goodell released his decision in Tom Brady's appeal of his four-game suspension, he made it clear that part of the basis for his decision was due to the fact that Brady "destroyed" his cellphone around the time the Patriots quarterback was interviewed by investigator Ted Wells.
Because the transcript of Brady's appeal had been sealed, it was not certain how the league came upon that description.
One thing was relatively clear: Brady or his team must have offered up the information that Brady had in some way discarded his phone. But did the league blow that information out of proportion? Had it altered the word choice of Brady's team in order to grab headlines.
Well . . . yes and no.
The league clearly harped on the word "destroyed" in order to emphasize what it saw as one of the most significant elements of Brady's testimony. The strong description -- and the colorful picture painted in the minds of readers -- of what Brady did with his cell had the added effect of saturating a 24-hour news cycle with the story of what was a perceived guilty act.
When information was leaked to ESPN's Stephen A. Smith before Goodell's decision came down, the destroyed-phone narrative quickly took hold and the court of public opinion had made a premature ruling of its own.
What the league did in highlighting the word "destroyed" may have been to draw support for its argument, but now that the appeal hearing transcript has been made public, we know that Brady's legal team was actually the party that introduced the word into the conversation.
New England Patriots
Below we've pasted the relevant testimony about Brady's phone and how he handled it, but the first person to utter -- or in this case write -- the word "destroy" was Brady's agent Don Yee.
In an email written to Goodell on June 18, Yee wrote: "His custom and practice is also to destroy SIM cards when he gets a new phone and to destroy the actual device when he is done with the phone."
During the hearing, Brady's attorney Jeffrey Kessler used the word "destroying" in a question to Brady.
"Okay," Kessler said. "Now, have you had a practice, and tell me when it began, how long ago, of destroying or, I guess, asking somebody to destroy or get rid of your cell phones periodically?"
Brady replied, "I think for as long as I have had a cell phone."
Below are three sections of the appeal transcript that deal with Brady's phone: Kessler's direct questions to Brady; Lorin Reisner's cross-examination of Brady; and Daniel Nash's cross-examination of Wells.
JEFFREY KESSLER TO TOM BRADY (DIRECT)
Q: Now, let me turn now very briefly to the subject of electronic communications. Now, did there come a time after February 28th, so now we are well past the Super Bowl when you learned from your lawyers or your agents that there had been some request made for e-mails and texts that you might have?
A. Yes.
Q. Okay. Now, we know that those were -- nothing was turned over or the request was not responded to. How did you make the decision about that? What were you relying upon? How did you decide that?
A. Well, I was relying on their advice as my lawyers and what they basically said, There's been a request, but we don't think it's proper for you to turn your phone over, so you don't need to do that.
Q. If they had told you that you should turn over anything, would you have done so?
A. Absolutely.
Q. Okay. At the time that the request was made, okay, you know what e-mails you did and what texts you did. Were there any e-mails or texts that you were worried about which showed you knew about deflating or anything like that? Was there anything you were trying to hide or conceal in your mind?
A. Absolutely not.
Q. Okay. Were there any such texts where you wrote to somebody talking about deflating footballs
22 or other things in connection with the AFC Championship Game?
A. No.
Q. Were there any e-mails like that?
A. No.
Q. Now, you were interviewed by Mr. Wells and his team, correct?
A. Yes.
Q. And did they spend a number of hours with you?
A. Yes.
Q. During that time, did they ever tell you that if you didn't turn over some texts or e-mails or respond to that that you were going to be disciplined in any way, you know, that you were going to be violating some, you know, specific policy about that or anything like that? Did they ever tell you that?
A. No.
Q. If you had been informed by them and they said look, this is your duty to cooperate, would you then have produced them no matter what your agents and your counsel said?
A. Yes.
Q. Okay. Have you ever had anything to hide on this issue, Mr. Brady?
A. No.
Q. Now, Mr. Brady, let me ask you about your patterns of phones, okay, because not everybody has this pattern, okay. First of all, do you have access to basically cell phones for free?
A. Yes.
Q. So it is essentially costless to you to get another cell phone?
A. Yes.
Q. Okay. Now, have you had a practice, and tell me when it began, how long ago, of destroying or, I guess, asking somebody to destroy or get rid of your cell phones periodically?
A. I think for as long as I have had a cell phone.
Q. Okay. Since you have been in the NFL?
A. I don't remember all the way back, but yeah, I've had a cell phone since being in the NFL.
Q. So whenever you first started having, I don't know when cell phones started, but whenever you started having cell phones in the NFL, that has been your practice, correct?
A. Yes.
Q. Okay. And did you do anything unusual here in terms of getting rid of your phone? And I will explain what I mean. In other words, did you hear about the Wells investigation or the request for this and then say, oh, let's get rid of my cell phone or anything like that?
A. No.
Q. Did you do anything unusual except your normal practice, when you are done with a cell phone, to get rid of it and have it destroyed?
A. That's what I do.
COMMISSIONER GOODELL: Just, Jeff, can I ask a question? How often do you normally dispose of your phone? When you say "get rid of," does it run out of time?
THE WITNESS: Well, if it -- a new version may come out of a particular phone, if I break the phone, I've stepped on the screen a few times, it just fell out of my bag at my locker, I'm not seeing it, I stepped on it, I think three or four times, sometimes the touch panel breaks.
COMMISSIONER GOODELL: But it's not a very regular practice, irrespective of you breaking it, to just get rid of it or when a new version comes out? I'm trying to understand that, or is it every month you change it just for security reasons?
THE WITNESS: No, I don't do that.
COMMISSIONER GOODELL: Does your number change when that happens?
THE WITNESS: No. The number would stay the same.
COMMISSIONER GOODELL: Okay.
Q. And, in fact --
THE WITNESS: The only time I changed it was after the report came out and there was -- a lot of people started guessing what my phone number was and then I changed my number.
MR. KESSLER: And, Commissioner, the phone log we produced, just for your information, covers that whole period for which we don't have the cell because the number was the same number. And we got all the phone records from the company and that has been submitted.
COMMISSIONER GOODELL: Do you have multiple phones?
THE WITNESS: No.
Q. Mr. Brady, when Mr. Wells interviewed you, did you answer every question that he or his
colleagues asked you?
A. Yes.
Q. Did you refuse to answer any question that he or his colleagues asked you?
A. No.
Q. By the way, did he ever ask you if there were any texts or phone messages that you had that would have discussed deflating footballs or anything like that?
A. Did he ask me?
Q. Yes, did he ask you that?
A. Yes.
Q. And what did you tell him?
A. No.
Q. That there were none?
A. Right.
Q. Let me now turn to a few more of the --
A. Can I just say something as I think about the process --
Q. Yes, please.
A. -- of getting rid of the phone?
Q. Anything you would like to tell about the Commissioner.
A. I think whenever I'm done with the phone, I don't want anybody ever to see the content of the phone, photos. Obviously there is a log with the smart phones of all my e-mail communications. So in those folders, there is player contracts. There's, you know, endorsement deals. There's -- along with photos of my family and so forth that I just don't want anyone to ever come in contact with those. A lot of people's private information that, had that phone -- if it shows up somewhere, then, you know, all the contacts in my phone, you know, wouldn't want that to happen. So I have always told the guy who swaps them out for me, make sure you get rid of the phone. And what I mean is destroy the phone so that no one can ever, you know, reset it or do something where I feel like the information is available to anybody.
* * * * * *
LORIN REISNER to TOM BRADY (CROSS-EXAMINATION)
Q. Did you know that one of the requests was for all text messages that related to ball inflation and ball deflation?
A. I don't remember.
Q. And do you know whether any search was done of text messages referring to ball inflation or ball
deflation?
A. Yes.
Q. Tell us what search was conducted for those text messages as far as you know.
A. Well, there was a forensics -- forensics team that Steve had, I guess, hired to examine some phones that I had.
Q. So there was a forensic team that was hired to examine the text messages on phones that were provided to that forensic team, correct?
A. Yes.
Q. And those were phones that you used, correct?
A. Yes.
Q. I want to direct your attention to what's in evidence as NFLPA Exhibit 6, which is the Supplemental Declaration of Brad Maryman. Do you have that document in front of you?
A. Yes.
Q. And is Brad Maryman the forensic expert that was engaged to review the telephones?
A. Yes.
Q. And you see there is a reference in paragraph 1 to, "Two mobile phone devices used by "Mr. Thomas Brady, Jr.," correct?
A. Yes.
Q. And that refers to the mobile phone devices that you provided for his review, correct?
A. Yes.
Q. And directing your attention to paragraph 4 of the document, it refers to the first phone and says that, "It's dates of active use were from March 6, 2015 through April 8, 2015." Do you see that?
A. Yes.
Q. And directing your attention to the next paragraph which refers to the second phone review, it says that, "The dates of active use were from March 23, 2014 or May 23, 2014 through November 5,
2014," correct?
A. Yes.
Q. And those were the only two phones that were provided to the forensic expert, correct?
A. Yes.
Q. And do you see that there is a gap from November 6, 2014 to March 5, 2015, in the phones provided to and received by and reviewed by the forensic consultant?
A. Yes.
Q. And did you use a cell phone to make calls and send and receive text messages during this gap period of November 6, 2014, to March 5, 2015?
A. Yes.
Q. And that gap period of November 6, 2014 to March 5, 2015, includes the day of the AFC Championship Game on January 18, 2015, correct?
A. Yes.
Q. And that gap period also includes the period immediately following the AFC Championship Game after questions were raised about possible deflation of footballs, correct?
A. Yes.
Q. And that gap period also includes a number of months leading up to the AFC Championship Game, correct?
A. Yes.
Q. It includes almost all of November, right?
A. Yes.
Q. All of December and January, all of February, all the way up to March 5, 2015, correct?
A. Yes.
Q. Do you know how many text messages you sent and received during that gap period?
A. I don't.
MR. REISNER: I'm going to ask that NFLPA Exhibit 1 be placed before Mr. Brady.
Q. These are phone records that have been produced by your counsel in connection with this proceeding. And I want to direct your attention specifically to the portion of this exhibit with the
Bates Stamp Numbers NFLPA Brady 00067 through NFL Brady 00206. And you will see that this document includes 99 pages of text phone records between November 6, 2014 and March 5, 2015 that list approximately 9,900 text messages that were sent or received during that period. So my question is: Do you know why a phone that was active during this period was not provided to your forensic expert for review?
A. We didn't have it.
Q. Do you know where that phone is now?
A. No idea.
Q. Are you certain that you disposed of that phone?
A. I gave it to my assistant.
Q. Do you know when you provided it to your assistant?
A. I have no idea.
Q. And when you provided it to your assistant, did you provide it to your assistant for the purpose of it being disposed of?
A. Yes.
Q. Exhibit 96 submitted by the NFL refers -- it's a letter from your agent, Donald Yee, to Commissioner Goodell, dated June 18th.
MR. REISNER: Why don't we have that placed before Mr. Brady.
THE WITNESS: Thank you.
Q. And if you look at the first page of this letter down toward the bottom, the letter states, referring to you, "His custom and practice is also to destroy SIM cards when he gets a new phone and to destroy the actual device when he is done with the phone." Do you see that?
A. Yes.
Q. And does that accurately reflect your practice?
A. Yes.
Q. And you say you don't recall precisely when you gave this phone to your assistant for estruction, correct?
A. Yes.
Q. But if you were following your practice, you would have done it around the time that you got a new phone, correct?
A. I'm not sure.
Q. Well, the letter that you just said accurately describes your practice says you destroy SIM cards when you get a new phone and "to destroy the actual device when he is done with the phone," right?
A. My assistant does that.
Q. Right. So if your actual practice was being followed, the phone would have been destroyed, the
phone you were using would have been destroyed around the same time you started using another hone, correct?
A. Right.
Q. And directing your attention back to the Declaration of Mr. Maryman, NFLPA Exhibit 6.
A. Yeah.
Q. The date of active use of your new phone, according to paragraph 4 of his declaration, was
March 6, 2015, correct?
A. Yes.
Q. Do you remember anything else that happened n March 6, 2015?
A. No.
Q. Was March 6, 2015 the date that you were interviewed by Mr. Wells and his team?
A. Possibly; I don't know. Was it?
Q. If I represent to you that March 6, 2015 was the date you were interviewed by Mr. Wells and his team, you have no reason to doubt that, correct?
A. Right, correct.
Q. And because your forensic expert didn't have access to the phone that was being used during what I'm calling this gap period, he couldn't review the text messages, the content of the text essages that were sent and received during this gap period, correct?
A. I think we tried to provide him with everything that we possibly could, you know, to that
point. If the phone was already taken out of service, then it was --
Q. You couldn't provide him with a phone that had been destroyed, correct?
A. Or that I had given to my assistant, whether he destroyed it or not.
Q. That you gave to your assistant for the purposes of destruction, correct?
A. Possibly.
Q. Was that your purpose? Was that your plan when you provided the discarded phone to your assistant, that your assistant would destroy the phone?
A. That was kind of the normal routine.
Q. So that was your expectation when you provided that phone to your assistant that the phone would be, in fact, destroyed, correct?
A. Yes.
Q. And if you were following your ordinary practice, that would have been around the beginning of the date of active use of the new phone that you were using, correct?
A. Possibly.
Q. If you were following the practice described in Mr. Yee's letter, that's what would have occurred, correct?
A. Not sure.
Q. Okay. At the interview on March 6th by Mr. Wells and his team, were you asked questions about text messages that you sent and received?
A. Yes.
Q. And at that time, were you aware that there was an outstanding request from the Paul, Weiss investigative team for text messages?
A. The only thing that I knew about phone and electronic communications was an e-mail that Don had sent me at some point that said there was a request to turn over your phone. There's really no reason to do that and we are not going to provide them that. And that's the last I thought of providing my phone.
Q. Were you aware on or about February 28, 2015 that a request had been made to you for text
messages?
A. I think the only thing that I remember was the e-mail from Don that said there's been a request made, along those lines, but we are not going to allow, you know, them to take your personal cell phone.
COMMISSIONER GOODELL: Was it around that time?
THE WITNESS: I don't know; I'm not sure. I don't remember when I got that message or --
Q. Do you recall at your interview on March 6th by Mr. Wells and his team being told that the Paul, Weiss team was seeking text messages?
A. I don't remember that.
Q. Do you remember being told during that interview that Mr. Wells didn't care whether he got the actual phone or not and that he would rely on your counsel to review the text messages and that would satisfy his request for the text messages? Do you recall hearing that discussion during the
March 6th interview?
A. I don't remember that.
Q. Mr. Kessler said that certain materials had been provided by your counsel in connection with this proceeding, correct?
A. Yes.
Q. Do you know whether the materials produced by your lawyers in connection with this hearing include the content of any text messages?
A. I'm not sure.
Q. So if I represented to you that the materials produced by your counsel in this proceeding don't include the content of any text messages, you have no reason to doubt that, correct?
A. Correct.
Q. And are you aware if the phone records produced by your counsel show that, on February 7,
2015, you and John Jastremski exchanged three text messages?
A. I'm not sure; I don't remember.
Q. Let's look back at NFL Exhibit 96, the letter from Mr. Yee to Commissioner Goodell. And I'm directing your attention to page 3 of the letter in the middle of the page. After Number 2, Jastremski, toward the end of that paragraph, it says, "The phone bills also show three text message exchanges on February 7, 2015 between 8:21 p.m. and 8:33 p.m. These occurred after the Super Bowl and were not mentioned or referenced in the Wells report." Do you see that?
A. What page are you on?
Q. Page 3 of the letter.
A. Yeah.
Q. Number 2 is Jastremski?
MR. KESSLER: Two in the bottom half, Tom.
Q. Two in the bottom half.
A. Yes.
Q. It says toward the end of that paragraph, "The phone bills also show three text message exchanges on February 7, 2015 between 8:21 p.m. and 8:33 p.m.," referring to text messages between you and John Jastremski, correct?
A. Yes.
Q. And that period of February 7 is in that gap period that the forensic examiner didn't have a
telephone for, right?
A. Right.
Q. So we don't know what the content of those text messages were, right?
MR. KESSLER: Are you going to ask him? You can ask him. He's right here.
Q. So you haven't been able to produce the content of those text messages, right?
A. No.
MR. KESSLER: Okay, I will have some questions on redirect. You don't want to know the
content?
MR. LEVY: Jeffrey.
MR. KESSLER: Sorry.
Q. And directing your attention to that gap period again from November 6, 2014, through March 5th of 2015, do you know whether anyone has reviewed those messages to determine whether there were any messages referring to the deflation of footballs or other topics that are responsive to the Paul, Weiss requests?
A. If someone reviewed those?
Q. Do you know whether anyone has been able to review those messages to determine whether there are any messages referring to the deflation of footballs or other topics responsive to the Paul, Weiss requests?
A. No.
* * * * * *
DANIEL NASH to TED WELLS (CROSS EXAMINATION)
Q. Did Mr. Brady or his representatives at any time tell you that they couldn't give you any of the texts because the phone had been destroyed?
A. No statements of that nature were made in any respect.
Q. If you would look at NFL Exhibit 96, this is a June 18, 2015 letter sent to Commissioner Goodell by Mr. Yee. I just want to draw your attention. In this letter, they talk about information that was now being provided regarding Mr. Brady's phone. And it says in the second paragraph, "Please note that in producing the cell phone and e-mail information, we have followed, in fact, we have gone further than the specific requests set forth in Wells's original electronic data request of February 28th made to us." Do you agree with that statement, Mr. Wells?
A. Well, I know, it is my understanding, I want to qualify, I haven't studied this, but it is my understanding that they didn't do any searches for the text messages for people other than Jastremski, Schoenfeld and McNally. So they didn't do that first big bucket I wanted that would have touched all people in terms of the search terms. And in terms of the text messages that they produced, to my understanding, and I didn't look through every page because the thing is real thick, like, 1,500 pages or something, there is no text message -- there's not one content. When I say a text message, I mean what did somebody say? They have phone bills that say on X date there was a text message, but there is no content. So that's like looking at a running log that said you sent an e-mail but you don't have the content. So I was looking for the content. Though, if Mr. Yee had come in and explained it to me -- look, I was trying to work with them. And so if he had explained, you know, we threw the phones away or whatever, you know, we would have talked about it. I did not want him in the position of not cooperating. I didn't want it for him. I didn't want it for me. Not only did it hurt him in terms of how we evaluated his credibility, but it put us in a hell of a spot because you have a person with this exemplary record and has done all these good things that people are saying, and yet they are conducting themselves in a fashion that suggests they are hiding something and may be guilty and not being forthcoming. So it was really hard to give them credit for the good stuff when he's basically looking you in the face and saying, I'm not going to give you my phone. But like I said, it not only hurt Mr. Brady, it hurt the investigation because it put us in a position we didn't want to be in because we wanted to be able to listen to him and evaluate his credibility without this cloud. That's why I kept saying, you know, reconsider. Give me -- I will take your word for it.
Q. The only other question I had is: You were asked about whether you had requested other, either e-mails or texts or other documents from anyone at the NFL; is it correct that you were provided with a number of documents from the NFL for your investigation?
A. Yeah, yeah, I was provided a huge number. And I just don't recollect as I sit here if we went through anybody's e-mails because the question Mr. Kessler asked me about was in terms of bias and with the testing. And what I found in terms of the testing, I didn't see any bias, so I didn't see any need to have to go back and look at e-mails for something I didn't see. If I had seen something in terms of bias being exhibited during the testing at halftime, I wouldn't have had any hesitation to go back and look for any e-mails, but I didn't see it. The problem with the testing that Mr. Kessler, you know, rightly pointed out, it doesn't have to do with bias. I had no records. People didn't record things at the front end. Mr. Anderson, he wasn't biased against anybody, but he didn't write things down. That was real. And, you know, there were issues in terms of record-keeping that I didn't have. But I didn't have record-keeping because of bias or somebody I felt was out to get the Patriots. The problem was, as he said, Mr. Kessler said, there weren't procedures.