When the sharks of the sports writing world smell blood, they pounce. That is especially an inviting opportunity when the bleeding comes from one of the icons of sport who plays for a club that always seems to win. Tom Brady, the man and the brand, has been grievously injured by Ted Wells' report about the deflation of a dozen footballs Brady was to use during the AFC Championship game in January.
There is no question that Brady is losing the public relations battle. After a brilliant season that culminated in a remarkable performance during the Super Bowl, the hero has received a blow that, while not fatal, will besmirch his reputation forever. Although the legal language on the "quantum of proof" has confused some folks, those reading the Wells report will likely conclude that Brady was part of the cabal that was intent on violating the rules of the game.
None of us have a way of knowing what happened that day in Foxborough. It is likely that the functionaries who were in charge of inflating the footballs knew from prior experience with Brady that the Patriots QB preferred that the footballs be under-inflated. They acted accordingly. We know what happened next. Whether this was a sting operation or a trap, the Patriots stepped into it and have been acutely injured as a result.
There is some discussion about Brady suing either Ted Wells and/or the NFL for defamation. Such a strategy is a non-starter for two good reasons. First of all, the court will defer the matter back to the NFL for consideration under the provisions of the collective bargaining agreement. Secondly, even if somehow the court keeps the case under its jurisdiction, Tom Brady is a public figure and, as such, he would have to prove "actual malice," that is, that Wells knew what he wrote was not true, a burden almost impossible to meet. The judicial strategy would come too late and will ultimately fail.
There is, however, a preferable strategy. Tom Brady, his lawyers and Robert Kraft, the much respected owner of the New England Patriots, must act immediately to change the discourse. They must publicly announce a counter-narrative of events based on the facts that they know, the facts that Brady told Ted Wells which were not included in the Wells report. Attacking the Wells report for its errors and omissions is simply not sufficient to the task at hand.
A public counter attack must be launched now before NFL Commissioner Roger Goodell imposes discipline. Once the Commissioner acts, he will be committed to his conclusions whatever the real facts may be. There will be no independent review of the determination. That is why the Brady camp must give the Commissioner some very good reasons for not imposing harsh penalties, which might include a suspension.
The best defense for Tom Brady and the Patriots in this case is a good offense. The Commissioner is in an especially vulnerable position himself after receiving heavy criticism for his botched discipline of Ray Rice. At the same time, the Commissioner certainly does not want to start the 2015-2016 season with a Thursday night game between the Pittsburgh Steelers and the New England Patriots at Gillette Stadium with the world champions led on to the field by their backup quarterback. That would be a marketing disaster. The Brady counter-narrative is the mechanism Commissioner Goodell can use to justify a modest fine against the team without a suspension.
Finally, there is the role that Robert Kraft can and should play in this unfolding drama. We are told that the Commissioner is indebted to Mr. Kraft for his support. Other owners likewise value what Mr. Kraft has done for their game and the financial value of their franchises. It is time to call in the chits. The Patriots, including Mr. Kraft, could not possibly have foreseen that the Wells investigation would end up placing the blame on two functionaries and the MVP quarterback. That obvious misjudgment on their part can be rebutted, but it must be done now. Mr. Kraft has to use his power and his influence to make sure the goose that has consistently laid the golden eggs is not butchered by a quasi-legal process that is out of control.