Brady could respond to the allegations in several ways.
1) Brady could accept responsibility and move on
Brady could issue a brief statement saying, in so many words, he takes responsibility for what is contained in the Wells Report and he’ll accept any punishment by the NFL. For Brady, the upside to this approach would be that it essentially ends the Deflategate controversy. The story would quickly become much less interesting if in fact the Wells Report is correct. Fans and Goodell might also applaud Brady for saying “I’m sorry.”
The downside for Brady would be that he would have admitted to engaging in deceitful conduct and behavior unbecoming of a player of his stature. He would presumably lose some fans in the process. Brady’s admission could also trigger an NFL suspension and, more importantly, badly harm his reputation. For the rest of his career, Brady could be ridiculed by opposing teams’ fans. He would be portrayed as a cheater, a label that critics of the Patriots often try to attach to the team since the Spygate scandal.
While unlikely, Brady admitting to wrongdoing could also lead his sponsors to reconsider their endorsement deals with him. Sponsors typically negotiate “morals clauses” that allow the sponsor to suspend or terminate payments to athlete endorsers when the athlete engages in controversial conduct.
2) Brady could deny the allegations and move on
Brady could instead issue a brief statement denying the allegations contained in the Wells Report and insist that he will never again talk about the subject. The upside for Brady in adopting this tactic would be that he goes on the record disputing the report but doesn’t expose himself to further questioning about it. This type of statement might also end the Deflategate controversy, especially if the NFL doesn’t punish Brady. Essentially, Brady and the NFL would agree to disagree.
The downside to this approach is obvious. Brady would be portrayed as hiding from the allegations, which would naturally lead some to disbelieve him. Brady also can’t control what questions journalists pose to him and, as Seahawks running back Marshawn Lynch knows, NFL rules require he answer questions in press conferences. For some time, media would repeatedly ask Brady about the Wells Report and he would have to say, “no comment” or—to borrow Mark McGwire’s famous line—“I’m not here to talk about the past.” This type of questioning could become a distraction to Brady and his teammates.
3) Brady could blame the NFLPA and his lawyers
Brady could also dispute the Wells Report and attribute his unwillingness to share information with NFL investigators to directives given to him by the National Football League Players’ Association or his attorneys.
In the immediate aftermath of the Deflategate controversy, the NFLPA instructed Patriots players to not speak with NFL investigators. Also, unlike Patriots officials, Brady’s legal obligation to speak with Wells was not clear. Brady, like other NFL players, had a contractual obligation to give his “best efforts and loyalty,” but his legal relationship with the NFL is more complicated than the NFL’s relationship with Kraft, Belichick, McNally and other non-union Patriots employees who were subject to the Deflategate probe. Brady is a member of a union that has collectively-bargained employment protections for players suspected of wrongdoing. No requirement or rule expressly compelled Brady to assist in a league investigation over game equipment. It isn’t as if Wells was working for both the league and players’ association: only the NFL retained him.
Brady could also cite likely instructions from his attorneys that he not share his phone and other evidence. While some may automatically reason that Brady’s refusal to share his emails and texts suggests he was hiding something, there are three other ways of looking at a refusal to share. First, employers do not have an automatic right to access all of an employee’s electronic files, especially on those employees’ personal equipment (such as an iPhone an employee purchases for personal and work use).
Second, Brady’s employer is the Patriots, not the NFL. To the extent his employer had a right to access, Brady’s attorney might have insisted materials could only be shared with the Patriots. This is a fairly unconvincing argument. The Patriots play in a league of franchises and are contractually obligated to cooperate in league investigations. Still, it is a concern that Brady’s attorney might have raised.
Third, Brady may have been concerned about personal information in his electronic records being leaked to media. The NFL is infamous for leaks, including throughout the Deflategate scandal. Even though Wells and his team assured Brady they were only interested in relevant information, it would be understandable for Brady and his attorneys to question whether that assurance would be absolute.
The drawback for Brady in blaming the NFLPA or his attorneys would be that his critics would say he is blaming others for his own mistakes.
4) Brady could attack the Wells Report
In addition to attributing responsibility to directives from the NFLPA and his attorneys, Brady could also directly attack the Wells Report. Brady might build on comments by Kraft. Although the 72-year-old billionaire says he “accepts the findings of the report,” he adds, “To say we are disappointed in its findings, which do not include any incontrovertible or hard evidence of deliberate deflation of footballs at the AFC Championship game, would be a gross understatement.”
Along those lines, while Wells is a well-respected attorney and his firm, Paul Weiss, is considered one of the best in the nation, Brady could highlight inherent limitations in the Deflategate probe.
First, the NFL hired Wells and his firm, thus limiting the “independent” quality of the report. When a business hires a law firm, an attorney-client relationship is formed. That relationship requires the law firm to advocate for the client. Wells also has a longstanding relationship with the NFL, having authored the 2014 probe into the Miami Dolphins and bullying. Is it a surprise, Brady might cynically ask, that Wells is directing blame onto a player—and the player who happened to be the first named plaintiff in the 2011 antitrust lawsuit brought by NFL players against the NFL—rather than onto an owner or coach? Brady’s dad, Tom Brady Sr., seems to have adopted this view, already dismissing the Wells Report as “Framegate.”
Second, as in any independent investigation, Wells lacked the power of subpoena. This means he could not compel disclosure of all evidence nor force a witness to speak with him. As a result, Wells might not have uncovered all of the relevant information. His blaming of Brady (and McNally and Jastremski) could thus reflect an incomplete narrative. After all, could other players have been more “generally aware” of wrongdoing than Brady?
Third, witnesses did not speak with Wells under oath. This means if witnesses lied to Wells, they would have done so without the threat of perjury charges. While there is no immediate reason to suspect lying or exaggeration occurred in the investigation, the lack of sworn testimony would be another structural limitation Brady might highlight.
5) Brady could file a defamation lawsuit against Wells, the NFL and Goodell
The boldest move by Brady would be to sue Wells, Paul Reiss, the NFL and Goodell for defamation. Brady could take a page from Jonathan Vilma’s defamation lawsuit against Goodell in the aftermath of the Bountygate report. Goodell had claimed that “prior to a Saints playoff game in January, 2010, defensive captain Jonathan Vilma offered $10,000 in cash to any player who knocked [opposing quarterback Brett] Favre out of the game.” Although not successful in court, Vilma’s lawsuit helped in getting his suspension overturned.
In a defamation lawsuit, Brady could contend that the statements contained in the Wells Report have caused him clear reputational harm. Brady would face an uphill battle in court. As a public figure, he’d have to prove false statements were made with “actual malice” (meaning intentionally or with knowledge). Brady would also be subject to pretrial discovery should his lawsuit advance past a motion to dismiss. Pretrial discovery would require Brady to answer questions under oath, a time-consuming and acrimonious process.
Don’t expect Brady to sue the NFL, but it would send a firm message that he believes he has been—as his dad says—framed.