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<xTITLE>Tom Brady: “We have all lost”</xTITLE>

Tom Brady: “We have all lost”

by Michael A. Zeytoonian
October 2015 Michael A.  Zeytoonian


Patriots’ quarterback Tom Brady’s sentiments about the ordeal of “Deflategate”, a story and a litigation that needlessly lingered around for seven months, reflects Abraham Lincoln’s sentiments over 150 years ago.  Brady’s statement, reported recently in TIME magazine, came after he won his appeal of the NFL’s decision to suspend him for four games for his alleged “general knowledge” about the team deflating footballs below the league’s range of inflation during a playoff game.

Brady’s accurate observation should not be lost on anyone, especially people contemplating initiating litigation or prolonging or escalating a dispute. Too often, litigation leads to a result that is frustrating at best and a lose-lose for all involved.  Brady “won” the appeal, but not before months of stress, damage to his reputation and thousands of dollars spent on lawyers.  The relationship between one of the league’s quality franchises, together with one of its marque players and the league’s commissioner and many team owners has been shattered; any trust most likely permanently broken.  Thousands, maybe millions were needlessly spent on legal fees, and everyone’s reputation was tarnished.  Too much time, energy, emotion and money was spent on something that within the smaller context of football and a league, should have been resolved with a $25,000 fine on the team, and in the larger context of things, doesn’t matter much at all.

As a successful trial lawyer, Lincoln advised young lawyers to “discourage litigation”, pointing out that “the nominal winner is the real loser’ in terms of money and time lost.  How much better served everyone would have been with a respectfully and efficient negotiation process that really addressed the interests and needs of the parties involved in deflategate?

Most people who have been involved in litigation will echo Brady’s sentiments.  One way or another, no one won here.  Like the Battle of Little Big Horn, in which the Lakota (Sioux) tribe and Crazy Horse won the day and Custer and all his men died on the battlefield, too many lives were lost or hurt on both sides, relationships were shattered forever and trust was destroyed.  In Montana after that battle and still today, nearly 140 years later, a silent battlefield marked with many tombstones is all that is left.  Nothing was built on this land being fought over then, no one lives on it or uses it, and neither of the combatants own the land today (it is part of the Crow Reservation).

For those readers that don’t follow football or stories as ridiculous as deflategate, it’s not worth telling.  For those who follow football, you already know its sad history.  After several levels of dispute, a federal judge vacated a four game suspension of Brady, finding the NFL’s commissioner’s decision to be without support and arbitrary.  It has been reported that the NFL has since appealed the judge’s decision and has asked for an “expedited” appeal, proposing that oral arguments be heard by the appeals court four months from now, in January, 2016.  Sometime after that, in all probably after the season has ended, the Super Bowl has been played and a year has passed, another decision will be handed down.  And even that may not theoretically be the last word from the judicial process, if the parties are crazed enough to continue.

Those of you not familiar with time frames in litigation are probably thinking:  Four months before a court even hears the oral arguments is considered “expedited”?  Really?  If you are not in the legal field and not a football or sports fan, you are probably thinking worse:  All this fuss, time and money over a few footballs that allegedly had slightly less air in them than what the league requires?  How misguided is that?  And for what possible positive result?

Three weeks ago the 2015-2016 NFL football season started.  Football fans are now focused on what they should be focused on – teams playing football.  For the fans and the rest of the world, Deflategate is thankfully and hopefully in the rear view mirror, at least for now.  Roger Goodell, the ill-advised NFL commissioner, is laying low, having not been seen or heard from since the judge’s ruling.  No one looks worse, and no one’s reputation and quite possibly livelihood, has taken a worse hit than Goodell.  Even if the league wins its appeal, which is highly unlikely, it will look hopelessly small minded in the “win”, as a league and a commissioner that doesn’t understand priorities or have lost their perspectives on what is important and what is not.

Tom Brady and his Patriots are 3 and 0 and look like a team on scorched earth mission, making their statement on the field, the latest victims being the Jacksonville Jaguars, losing 51 to 17 to this now angry juggernaut.  The two teams that raised the issue of the so-called deflated footballs are the Ravens, who have yet to win a game this year, and the Colts, who, after two losses, are very fortunate to have eked out a 35-33 win over a third tier team to go with their two losses.  In three weeks, they get to play the Patriots.  Apparently, some are bigger losers than others.


Michael A. Zeytoonian is the Founding Member and Director of Dispute Resolution Counsel, LLC and is a lawyer, mediator and ombudsman. He is formerly a partner and now Of Counsel at Hutchings, Barsamian, Mandelcorn & Zeytoonian, LLP, in Wellesley Hills, MA. He specializes in employment law, business law, special education law, mediation, collaborative law and administrative law. He is admitted to practice in the state and federal district courts of Massachusetts and New York (Southern District) and the state of Connecticut. He has served as a mediator on the MWI panel in the district courts and on the BBA panel in the Boston Municipal Court.

He is a member and Massachusetts Bar Association and is chair of the MBA’s ADR committee and a member of the labor/employment section. He is a Past President (2006-2007) and member of the Massachusetts Collaborative Law Council, the International Academy of Collaborative Professionals and the New England Association for Conflict Resolution. He writes frequently on collaborative law and alternative dispute resolution (ADR) and has trained lawyers and presented in collaborative law and ADR around the U.S., Canada and Ireland. He has lectured at Northeastern University School of Law, Suffolk University School of Law, New England Law Boston, UMASS School of Law and Roger Williams University School of Law.

He served as Assistant Attorney General in the Office of the Attorney General of the State of New York, as a deputy overseeing litigation in the State Counsel Bureau in Westchester, Rockland and Putnam Counties and working on consumer advocacy cases. Prior to his work at the Attorney General’s Office, he was an Assistant County Attorney in the Westchester County (NY) Law Department, in the litigation and family court bureaus. His litigation work at both the County Law Department and the Attorney General’s office included cases in employment; labor; state, county and local municipal matters; environmental law; construction, administrative and tort law, and the prosecution of child abuse and neglect cases. His undergraduate education was at Boston College and Iona College, where he received his Bachelor of Arts degree is history and education. He earned his J. D. from Pace University School of Law with a Certificate in Environmental Law in 1990.

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