Bill Belichick better get ready to answer some tough questions — and he won’t be able to escape them.
Forget about Belichick being able to exercise his Fifth Amendment rights, if he doesn’t want to speak about his inside knowledge of the Giants’ head coaching search during a deposition for Brian Flores’ explosive lawsuit.
The Fifth Amendment — which protects against self-incrimination — almost certainly would not apply in this situation, two New Jersey-based attorneys told NJ Advance Media.
Belichick could take the Fifth “only if for some reason he’s exposed to potential criminal liability,” said Craig Rothenberg, who frequently handles civil suits. “If he is not, he has to answer the question.”
Even if Belichick’s answers in a pre-trial deposition exposed him to a possible civil suit — and he isn’t being sued by Flores right now — that is not a valid reason for taking the Fifth. It only covers self-incrimination against criminal liability.
Plus, while civil depositions don’t happen in a public forum, lawyers sometimes are allowed to release the question-and-answer transcripts to reporters without penalty. So Belichick’s responses — given under oath — might eventually see the light of day.
That would take Flores’ lawsuit to another level, particularly if the famously secretive Belichick offers testimony that pulls back the curtain on what he knew — and how he knew it — about the Giants’ pursuit of Flores and Bills offensive coordinator Brian Daboll, who became their head coach.
We are a long way from that happening. Flores, the recently fired Dolphins coach, filed a lawsuit Tuesday that accuses the NFL and three of its teams — the Giants, Dolphins, and Broncos — of racial discrimination. The league and those teams have denied Flores’ claims.
Flores accuses the Giants of conducting a sham interview with him for their head coaching job, only to comply with the NFL’s Rooney Rule, which is designed to promote minority candidates like Flores, who is Black. Flores says the Giants had already decided, before interviewing him, that they were going to hire Daboll, who is white. The Giants deny this.
Flores reached that conclusion because three days before his Giants interview, he received a text message from Belichick, the legendary Patriots coach, who is mentor to Flores and Daboll. The text was meant to congratulate Daboll on being chosen by the Giants. But Belichick accidentally sent it to Flores. At that point, Flores says, he knew the job was Daboll’s.
The NFL surely wants to settle this case as quickly as possible, to prevent prominent figures like commissioner Roger Goodell and Giants co-owner John Mara from having to sit for depositions. But Flores might refuse a settlement and decide to push his suit as far as he can, if only to make Goodell, Mara, and others have to answer questions under oath.
So what’s the next step? And how might this case unfold, particularly with Belichick’s critically important testimony about the Giants’ coaching search?
To sort through the possibilities, NJ Advance Media interviewed Rothenberg and a retired trial attorney. Both declined to speculate on the outcome of Flores’ suit, but provided general information about the civil suit process and how it applies to this case — what’s allowed, what’s not, and which details could emerge publicly.
The retired attorney — who is a former president of the New Jersey Trial Lawyers Association and a 20-year member of the New Jersey Supreme Court civil practice committee — spoke on a condition of anonymity, because he is not involved in Flores’ suit. But like Rothenberg, he is an expert in civil suits, having taken more than 1,000 depositions during his career.
Flores has claimed that Belichick influenced the Giants’ decision to pick Daboll even before Flores’ interview happened.
“I think there are back-channel conversations that are had that oftentimes influence decisions,” he told National Public Radio of the NFL’s hiring practices, which he claims are racist. “I think [the Giants’ coaching search] is a clear example of that. Bill Belichick is a clear example of that. It was clear to me that decision was made with his influence. That’s part of the problem. That needs to change.”
The retired attorney said that even if Belichick somehow committed collusion in the Giants’ coaching search, that would not allow him to hide behind the Fifth Amendment in a deposition, because “there is no criminal exposure” in that hypothetical situation.
“Collusion, in a business sense, could be actionable civilly — where the remedy would be money damages — but there’s no crime,” he said.
Without access to Fifth Amendment rights, if Belichick ultimately refuses to answer questions at a deposition, he would be charged with contempt of court.
The more immediate questions stemming from Flores’ suit: How did Belichick supposedly know, so early in the process, that the Giants were going to hire Daboll? Who told him? Was it a Giants decision maker or someone else, perhaps outside the organization? And how was the information given to Belichick? In a phone call? Through a text message?
Flores’ lawyers will attempt to pin down those answers. Their first step — reach out to Belichick informally and see if he is willing to talk. If he says no, and he probably will, then he would be subpoenaed for an under-oath deposition.
During the deposition, Flores’ lawyers would ask Belichick where he got that key piece of information.
If Belichick says he doesn’t recall, Flores’ attorneys could subpoena his phone records, text messages, and emails — a potentially challenging route, because he isn’t a defendant.
If Belichick gives up a name from the Giants, the lawyers could subpoena communication from that person to Belichick, as part of the pre-trial discovery phase.
This is an easier way of narrowing the search down, for Flores’ lawyers, than trying to convince a judge to let them weed through Belichick’s records. A broad, fishing expedition-style search like that usually isn’t permitted. The Giants are a party in the lawsuit, since they’re being sued. Belichick is not a party in the suit. He is not being sued. So the Giants would have less strict disclosure obligations during the discovery phase than Belichick.
Still, barring an early settlement, Belichick will not be able to avoid a deposition in this case, because his testimony is so important to Flores’ accusations against the Giants.
“He can’t avoid a deposition,” the retired attorney said. “There is literally no chance, because he’s a fact witness. He clearly has knowledge of facts. I’m not saying he wouldn’t be able to give evasive answers. But he’s not going to get out of a deposition.”
This deposition won’t air on live television, but what Belichick says under oath could be released by, say, one of Flores’ lawyers — if that person wants to release it — without fear of penalty. That’s because civil depositions, while not officially public record, are not totally confidential like grand jury testimony is.
“Unless there is a court order issued with respect to a particular deposition, anybody who has a transcript — meaning any lawyer — can release it,” the retired attorney said.
He said such a protective order appears “really unlikely” in this case, which does not seem to contain information that is “against the public interest.” The NFL and Giants would fight the release of deposition transcripts. They surely hope it doesn’t even get this far.
Rothenberg said a lawyer might choose to not release a deposition transcript to reporters, if “he’s trying to protect” his case or client.
Flores has filed a class-action lawsuit, and publicly stated that he wants other minority coaches to join him. So perhaps releasing a deposition transcript — with a powerful person being pressed by lawyers about racial discrimination — might bring other coaches onboard.
Of course, NFL fans would love to see the really juicy stuff — Belichick’s text messages.
And some of them — as long as they don’t contain personal information or trade secrets — could wind up seeing the light of day. They’d fall under the same “not totally confidential” umbrella as the deposition transcript, unless there’s a protective order concealing them.
But Flores’ lawyers face some hurdles in obtaining them — or emails or phone records — since Belichick isn’t a defendant/party in the suit. And it’s easier for lawyers to get documents from a party in a suit than a non-party.
Any subpoena attempt to get his personal records and data also would have to be extremely narrow — beyond just asking for all messages and calls in a three-day span, for example. One possibility is an in-camera review. That means a judge would examine Belichick’s messages and order a limited release of the relevant ones into the case file.
There’s also this: Maybe Belichick received that key piece of information during a phone call, and not in writing. That would make things more problematic for Flores’ lawyers, since the evidence wouldn’t be as concrete.
The NFL’s initial stage of fighting Flores’ lawsuit — as Pro Football Talk noted — could involve the league arguing that the case must be handled in a closed arbitration setting, because of a standard clause in NFL coaches’ contracts. That would keep most of this stuff hidden.
So maybe, because of an arbitration setting or a monetary settlement, this case never reaches the point of pre-trial depositions or even an open-court trial.
But if it does, that could mean plenty of tough questions — and no Fifth Amendment shield — for Mara, fellow Giants co-owner Steve Tisch, and general manager Joe Schoen. Plus, their relevant emails and text messages being tossed into the case file — right along with Belichick’s.
“Schoen is going to get deposed, Mara is going to get deposed, Tisch is going to get deposed,” the retired attorney said. “They can be asked about conversations they had with each other. They can be asked about all kind of things. There’s going to be an incentive to settle the case.”
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Darryl Slater may be reached at dslater@njadvancemedia.com.
Brian Flores lawsuit: Why lawyers say Bill Belichick can’t hide behind Fifth Amendment — and his Giants secre - NJ.com
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