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Ted Wells, “independent” investigator in name only

Words are neat. Because words can be used however we want to use them, regardless of whether we’re using them in a way that meshes with their actual meaning.

Sure, there’s the whole Eighth (or for some religions Ninth) Commandment thing that restricts creativity when it comes to using words. But when it comes to applying general labels to something, there’s no true or false, right?

For the investigation of the Patriots, the NFL applied the label “independent” to Ted Wells from the initial announcement of his assignment. The initial assignment also said that the investigation would be led jointly by NFL general counsel Jeff Pash and Wells.

That statement never was corrected, even though it apparently should have been. Because Wells disagreed with it. Strongly.

“I immediately telephoned Mr. Pash because I had not been told that we were going to be doing it jointly,” Wells testified at page 262 of the Tom Brady appeal hearing transcript. “And Mr. Pash explained to me that I would be the independent investigator, that he would be there to help facility on procedural-type issues and dealing with the Patriots, but that we were going to run it the same we had run the Dolphins investigation, which was I would be the independent investigator with the team. We would make -- ‘we’ meaning Paul, Weiss, would make all of the decisions with respect to the investigation and that it would be my report. . . .”

The absence of a correction created a lingering perception that Pash was involved, even though as to the actual investigation he supposedly wasn’t. Until, as we now know, the time came to review the supposedly independent report generated by Ted Wells.

Wells admits that Pash received drafts of the report, and that Pash provided comments on it. While Wells downplayed Pash’s involvement as “wordsmithing” by a “Harvard-trained lawyer” who apparently couldn’t resist chiming in, Wells doesn’t know what Pash’s comments were.

It’s possible that Wells’ partner, Lorin Reisner, knew what Pash’s comments were. But Reisner at some point transmogrified from Assistant to the Independent Investigator to Lead Counsel for the NFL, because it was Reisner who questioned the witnesses on behalf of the NFL at the Brady hearing.

Let’s think about that one for a second. The Paul, Weiss firm was hired to perform an independent investigation. And one of the lawyers from the Paul, Weiss firm was then asked to serve as the NFL’s advocate. It would be interesting to know whether Paul, Weiss knew when accepting the assignment that it would potentially include representing the NFL in any proceedings arising from the aftermath of the report, because that would create an incentive to ensure that such proceedings would happen.

While the fees generated from Reisner serving as what the lawyers would call “first chair” for the NFL vs. Brady one-day trial wouldn’t be in the $2.5-to-3-million range that the investigation generated, it would provide a great opportunity for Paul, Weiss to expand and deepen its relationship with the NFL.

Of course, we’ll never know whether the Paul, Weiss firm had that extra incentive at the outset of the “independent” investigation because, even though Wells was supposedly independent, the NFL asserted an “attorney-client privilege” regarding communications with Wells during the hearing, which necessarily makes him something other than a truly independent voice.

So no matter how much he tries to say that he was operating in a neutral capacity, common-sense shows that he wasn’t. The NFL paid him. The NFL worked with him, and he worked with the NFL. Jeff Pash, who didn’t testify at the hearing because the arbitrator-commissioner ruled he didn’t have to (yet another benefit of not having a neutral arbitrator), worked with Wells and reviewed his work and provided comments on it before the public saw his work.

The content of the comments don’t matter. The mere fact that Pash had the ability to review the document shows that he had influence over the process. Which means (we’ll go slowly in case Ted is reading this) . . . that . . . Ted . . . Wells . . . was . . . not . . . independent.

The investigation can be called “independent” only in the sense that Ted Wells doesn’t get a direct paycheck from the NFL or (as far as we know) doesn’t have an office at 345 Park Avenue. The assertion of the attorney-client privilege, the review of the report by Pash before it was published, and the use of Lorin Reisner as the barrister of the Brady Balls Ball make it clear that Ted Wells was operating no differently than any other outside lawyer hired by a client to do whatever the client asks him to do, and all that that implies.

But the NFL will still call Ted Wells independent, because that gives his work an inherent sense of credibility, impartiality, and accuracy. Anyone who’s paying attention to the case now knows that Ted Wells is no more independent than Pash or any other person whose paycheck is signed by Roger Goodell.