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Report: No chance of NFL, Brady settlement before Wednesday hearing
0:40 | NFL
Report: No chance of NFL, Brady settlement before Wednesday hearing
Tuesday August 11th, 2015

SI.com legal expert Michael McCann answers key questions heading into Wednesday’s showdown between New England Patriots quarterback Tom Brady and NFL commissioner Roger Goodell in a New York federal court.

Q: Can the public attend Wednesday’s hearing?

Only a small portion of Wednesday’s proceedings will likely be made available to the public. It is expected that the two sides, including Brady and Goodell, will meet privately at 10:30 a.m. for a brief meeting with U.S. District Judge Richard Berman in the judges’ robing room. At that time, Judge Berman will ask the lead attorney for each side for an update on their settlement conversations to date. At 11:00 a.m. the parties will appear in a courtroom for a formal hearing. At least the first part of this hearing will be made available to the public. During this hearing, attorneys for both sides will likely make statements summarizing their legal arguments. Judge Berman might also use this hearing to resolve any upcoming scheduling issues. Judge Berman will then likely ask the public (and media) to leave the courtroom. He would then engage in settlement discussions with both sides. The discussions could occur in the courtroom or in the judge’s private chambers.

To be clear, Judge Berman is in control of Wednesday’s proceedings and could change the format in important ways. For instance, if he believes that the parties are not making a good faith effort to settle or if he doesn’t believe a settlement is possible, he could keep both sides in the courtroom to deliver oral arguments and engage in debate. The media and public would be in attendance (but it would not be televised, as cameras are barred from federal court proceedings).

Q: Will Tom Brady speak to Roger Goodell on Wednesday?

It’s possible that Brady and Goodell could interact with one another during settlement discussions supervised by Judge Berman. While most of the settlement conversations will be between the attorneys and Judge Berman, Brady and Goodell are expected to be in the room and may possibly speak.

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Q: Could the NFL produce a “smoking gun” on Wednesday?

No. The NFL and NFLPA have agreed that if Judge Berman makes a decision on the lawfulness of Goodell upholding Brady’s suspension, it would be based on the evidence that Goodell considered in Brady’s appeal. Brady’s transcript likely documents all of the evidence that Goodell considered when he made a decision. As a result, potential “game-changers”—such as the NFL unexpectedly producing sworn statements by Patriots assistants Jim McNally or John Jastremski—will not be part of Wednesday’s discussion.

Q: Could Judge Berman demand that Brady turn over his broken phone or at least turn over records of texts and emails?

No. Again, the parties have agreed that Judge Berman would only make a decision based on existing evidence—not new evidence. Also, courtroom proceedings are not like TV shows depictions of them. A judge can’t suddenly demand that a litigant turn over evidence. There has to be a hearing and a stipulated process over which pieces of evidence would be admissible and for what purposes they would be admissible.

Q: Last Friday you raised several critiques about the NFL’s redesigned legal arguments against Brady. Will those arguments matter on Wednesday?

Those arguments probably won’t play a meaningful role, at least not during the settlement discussions. Judge Berman will use Wednesday’s proceedings to make it easier for the two sides to find grounds to settle. He’ll likely refrain from highlighting reasons for them to continue their legal battle.

Q: Will statements made during a private meeting be on the record and admissible?

No. Assuming Judge Berman engages in private settlement talks with the parties, the discussion would consist of conversation, not testimony.  Statements made during a settlement meeting would not be recorded and would be inadmissible in upcoming hearings. The goal of settlement discussions is to encourage candid exchanges without fear that the opposing party will later use comments to its advantage.

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Q: Could Judge Berman on Wednesday signal which side he favors?

Both legal teams will be very interested in the types of questions Judge Berman asks and how he directs the conversation. It’s possible that Judge Berman will demonstrate more skepticism for the legal arguments of one side than the other. If he does, that could serve as a forewarning of how he might rule.

On the other hand, some judges are known for playing “Devil’s Advocate” in questions they pose to attorneys. Sometimes judges may seem hostile but in fact are merely making sure that they are right about a position. It can be naïve to “read the tea leaves” when speaking with judges.

Q: Will Judge Berman ask Tom Brady if he did it?

No. Judge Berman is not going to escalate the already high tensions. His goal on Wednesday is to encourage a settlement. Also, whether Brady “did it” is not the legal question in this litigation, so it’s unlikely Judge Berman would address it.

Q: Will Judge Berman reprimand Roger Goodell and NFL lawyer Daniel Nash for publicly discussing the litigation this past weekend?

I don’t think so. While on July 30th Judge Berman advised both sides “it is appropriate (and helpful) for all counsel and all parties in this case to tone down their rhetoric” and warned them to avoid “scorched Earth” rhetoric, he did not bar anyone from commenting publicly about the case. The remarks Goodell made at Sunday’s Pro Football Hall of Fame induction ceremony in Canton, Ohio were not especially contentious. He called Brady “a great young man” and discussed enforcing rules that were collectively bargained. Moreover, Daniel Nash’s interview with USA Today merely summarized the league’s arguments against Brady.

Q: Will Judge Berman ask about former Dolphins offensive line coach Jim Turner suing Ted Wells?

Probably not. While settlement talks are designed to be flexible, Turner’s lawsuit would be inadmissible evidence in Brady’s case. It seems unlikely that Judge Berman would mention it.

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Q: What are some of the potential types of settlements?

While Deflategate remains a mystery eights months after the AFC Championship Game, the legal dispute over whether and how the NFL should punish Brady could be resolved very easily. The parties could agree that Brady’s suspension be reduced, perhaps to one game or two games. Alternatively, they could agree that Brady’s suspension be converted into a fine. Or, in a more complicated arrangement, they could agree that a relatively neutral person hear a second appeal by Brady. Instead of Goodell as the presiding officer, the presiding officer may be someone like former U.S. District Judge Barbara Jones (who presided over Ray Rice’s appeal) or former NFL commissioner Paul Tagliabue (who presided over appeals by New Orleans Saints players who were suspended due to their alleged involvement in Bountygate).

The wording of a settlement would also prove crucial. Brady would obviously demand that a reduced punishment clear him of any participation or knowledge in a ball deflation scheme. He may be willing to accept a reduced punishment if it merely reflects his level of cooperativeness in a league investigation.

Q: What are Tom Brady’s two best reasons for accepting a settlement?

First, even if Brady is completely innocent, he could lose in court. Remember, whether Brady “did it” is not the legal question in this litigation. The question is whether the NFL lawfully applied the collective bargaining agreement in terms of procedure, notice and consistency. Judge Berman may doubt that Brady had anything to do with a ball deflation scheme—and even doubt that such a scheme occurred—and yet still rule in favor of the NFL. Federal law also requires that Judge Berman provide high deference to Goodell’s arbitration award (Goodell upholding of the four-game suspension) against Brady.

Second, although early reports from Patriots training camp indicate that Brady is playing extremely well, being at the center of a high-profile lawsuit is surely a distraction and aggravation. It is no longer June and July when Brady had more time to meet with attorneys and go over legal strategies. We’re now in mid-August, and Brady’s focus has likely shifted to training camp and preparing to help the Patriots repeat as Super Bowl champions. Traveling to New York for court hearings would eventually mean missed practices and meetings. A settlement, however, would end the legal process and Brady could go back to being the Brady of old.

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Q: What are Tom Brady’s two best reasons for refusing a settlement?

First, if Brady is completely innocent, it would seem difficult for him to accept any punishment. Brady knows that if he settles, his critics will say that he is admitting fault. Some, including opposing teams’ fans during road games, will heckle Brady and deride him as a “cheater.” Brady can mitigate the reputational harm of a settlement by demanding that the NFL release a statement explaining that Brady’s punishment is only for a failure to fully cooperate. Even then, a settlement would be perceived to some degree as an admission.

Second, Brady stands a good chance of defeating the NFL in court. While the wording of the collective bargaining agreement clearly favors the NFL, Brady’s attorneys have outlined a number of compelling arguments. I have detailed those arguments in other articles on SI.com.

Q: What are the NFL’s two best reasons for accepting a settlement?

First, Deflategate has become an albatross for the NFL and especially Goodell. It has dragged on for months. Despite the league spending millions of dollars investigating what may have happened in the AFC Championship Game, there remains lingering doubt that any intentional ball deflation scheme actually took place. Brady’s transcript, which the NFL unsuccessfully sought to keep confidential, revealed an absence of implicating evidence. The NFL now claims that it doesn’t matter under the law if Ted Wells was independent, even though the league has repeatedly championed Wells’ purported independence. From a public relations standpoint, the league would be well served seeing Deflategate go away and never return.

Second, there’s a good chance that Judge Berman would rule against the NFL. The league has arguably shifted its rationales for punishing Brady and it’s unclear why Brady received a four-game suspension. Brady’s attorneys have developed fairly persuasive arguments based on a lack of process and notice, and they effectively invoke the “law of shop,” which refers to the need for consistency in arbitration decisions.

Remember, the worst-case scenario for the NFL would be to lose to Brady. It would constitute the NFL’s second recent loss in court over player suspensions. It was only last February when U.S. District Judge David Doty vacated Adrian Peterson’s suspension. Like with its loss to Peterson, the NFL losing to Brady would create incentives for future suspended players to challenge their suspensions in court. Those players would remember that Peterson and Brady won by going to court, so they’d be more likely to adopt the same strategy. A loss to Brady would also raise serious judgment questions about why Goodell would wrongfully target Brady, one of the league’s most marketable and successful players.

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Q: What are the NFL’s two best reasons for refusing a settlement?

First, the NFL does not want to encourage suspended players to go to court to challenge league suspensions. The league believes that it obtained complete and final authority on player discipline through Article 46 of the collective bargaining agreement. By settling—and thus reducing Brady’s punishment—the NFL could unwittingly motivate future suspended players to pursue remedies in court in hopes of cutting favorable deals with the NFL.

Second, the NFL is confident that Judge Berman would rule in the league’s favor. Despite the absence of direct evidence and a questionable process used by the NFL to judge Brady, the league enjoys two key legal advantages over Brady: the collective bargaining agreement provides Goodell with sweeping authority over player conduct matters and federal judges are obligated to give deference to arbitration awards.

Q: If the two sides fail to settle on Wednesday, what would happen next?

For starters, the parties would likely continue to engage in settlement talks. Settlement conversations are not “one shot deals.” It is very possible that an agreement could be reached later this month. In fact, they could settle at any time before Judge Berman issues an order, which would not be expected until September.

The litigation process, however, would continue. Both sides would be expected to file briefs on Friday. They would also be brought back to court next Wednesday, August 19th. Judge Berman has reserved that day for either additional settlement talks or adversarial oral arguments, depending on whether the two sides are making constructive progress towards an agreement. If they remain far apart on a settlement, the two sides would make formal oral arguments against one another on August 19th. These arguments would be delivered in a courtroom, meaning media and the public could attend the proceeding. Although Judge Berman has not specified how the oral arguments would work, it is likely that the lead attorney for each side would debate one another. It would not be a “trial” with evidence and witnesses presented.

If a settlement is not reached by September 4th, Judge Berman would be expected to make a decision. He would either confirm Brady’s suspension or vacate it.

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Q: Can you explain what would happen if Judge Berman rules in favor of the NFL?

If Judge Berman confirms the suspension, Brady could file an appeal to the U.S. Court of Appeals for the Second Circuit. He could also petition for a temporary restraining order or a preliminary injunction. The odds would be decidedly against Brady at that point, as Judge Berman’s order would be accorded high deference. In all likelihood, Brady would be forced to sit out the first four games of the 2015 regular season.

Brady could also consider filing a defamation lawsuit against the NFL, but that lawsuit would not offer the prospect of equitable relief (that is, even if Brady wins a defamation lawsuit, it would not put Brady back on the field). A defamation lawsuit would only offer Brady the possibility of monetary damages. It is worth noting that Brady’s net worth is already thought to be in the ballpark of $120 million—and that doesn’t include the net worth of Brady’s wife, super model Gisele Bundchen, who’s thought to be worth around $340 million. The possibility of hundreds of thousands of dollars or even millions of dollars from a successful defamation lawsuit might not be as motivating for Brady as it would be for most. This also assumes that Brady would win a defamation lawsuit, which might prove challenging given that Brady is a public figure and must prove actual malice (the NFL intentionally or knowingly lied).

Q: Can you explain what would happen if Judge Berman rules in favor of Brady?

If Judge Berman vacates Brady’s suspension, Brady would—for the moment—be eligible to play in the Patriots season opener against the Pittsburgh Steelers on September 10th. But the technical effect of Judge Berman vacating the suspension is that Goodell’s July 28th decision to uphold Brady’s punishment would be invalid. It is at least theoretically possible that the NFL could issue another punishment.

Even if the NFL opts not to issue a new punishment, it could file appeal with the U.S. Court of Appeals for the Second Circuit. The NFL would likely ask this federal appeals court to expedite its review. The league would stress that the Patriots' first game is on September 10th and time is of the essence. Appeals courts, however, usually don’t move that quickly—especially for the type of matter here: whether a football player can play in a football game. In the grand scheme of legal proceedings, some of which involve life or death, Brady’s situation is not very important.

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On the other hand, the U.S. Court of Appeals for the Second Circuit has come to the NFL’s rescue in the past. Back in February 2004, U.S. District Court Judge Shira Scheindlin of the Southern District of New York ruled that the NFL’s eligibility rule was unlawful under antitrust law and that Maurice Clarett was eligible for the 2004 NFL draft (as a disclosure, I was on Clarett’s legal team). The NFL then sought an emergency hearing before the U.S. Court of Appeals for the Second Circuit. The Second Circuit granted the request and expedited its review. In an April 2004 decision authored by future U.S. Supreme Court Justice Sonia Sotomayor, the Second Circuit ruled in the NFL’s favor.

Note, however, that even in the Second Circuit’s expedited process for Clarett v. NFL, it took 10 weeks between Judge Scheindlin’s ruling and Judge Sotomayor’s ruling. The Second Circuit, in other words, is unlikely to reverse Judge Berman ruling in Brady’s favor before Brady plays the first four games of the 2015 regular season. But therein presents risk for Brady: it would be possible that the Second Circuit reverse Judge Berman’s order sometime this fall or winter, meaning Brady’s four-game suspension would be reinstated at a potentially crucial point of the season—or postseason—for the Patriots.

Q: Can the Patriots consider legal action against the league to challenge the loss of draft picks and the fine?

In theory, the Patriots could sue the NFL in an antitrust lawsuit, among other types of potential claims that I previously analyzed on SI.com. Don’t expect it to happen. First, Patriots owner Robert Kraft already declined to raise a challenge within the NFL. While Kraft could argue that the circumstances have changed—namely, the evidence underlying the accusations against his team seem weaker than initially thought—a court would likely reason that Kraft should have tried an internal appeal before going to court. Second, it is extremely difficult for a team to successfully sue a league. League constitutions, and various other legal instruments, require owners to relinquish rights that they might otherwise have against the league as a condition of franchise ownership.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. In the fall 2015 semester, he will teach an undergraduate course at UNH titled “Deflategate.” McCann is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

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