Does Tom Brady now have upper hand vs. NFL in Deflategate case?
2:24 | NFL
Does Tom Brady now have upper hand vs. NFL in Deflategate case?
Wednesday August 19th, 2015

While U.S. District Judge Richard Berman continues to implore attorneys for the NFL and NFLPA to settle their dispute over Tom Brady’s four-game suspension, the judge has perhaps unintentionally signaled to Brady that he might be better off waiting for a decision.

In court on Wednesday, Judge Berman raised numerous criticisms about the methods used by the NFL to investigate and punish Brady. These criticisms are important because, barring a settlement, Judge Berman will make a decision on whether the NFL’s process and procedures in the Brady matter reflect a lawful application of Article 46 of the league's collective bargaining agreement.

Here are my three key takeaways:

1. Be careful reading into Judge Berman’s questions

Before examining Judge Berman’s concerns about the NFL’s case, it’s worth highlighting several caveats.

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First, most of Judge Berman’s discussions with attorneys for the NFL and NFLPA have been behind closed doors and not open to the public. We do not know whether his tone and areas of interest are different in those confidential discussions. It is conceivable that Judge Berman is markedly more critical of the NFLPA’s case without the media present. Perhaps Judge Berman wants the media to hear his disgust with the NFL’s methods because he reluctantly believes that he’s obligated to rule for the NFL. Remember, under federal law, Judge Berman is compelled to accord Goodell, as the arbitrator, high deference. Judge Berman may ultimately feel bound to rule in a way that he would rather not. In the meantime, perhaps Judge Berman wants to express numerous grievances about the NFL’s system of justice so that the media remembers them when his decision is rendered.

Second, judges sometimes play the role of devil’s advocate, where they seem critical of one side but in fact are inclined to agree with that side and are only testing themselves as to why they agree. It is possible that Judge Berman wants to exhaust every weakness in the NFL’s case before he’s willing to accept it.

Third, judges’ questions are not always predictive of how they’ll rule. It is not unusual for attorneys to complain that they thought they would win a case based on the judge’s apparent sentiments during oral arguments, only to unexpectedly lose when the written order was published. Judges can be very hard to predict. This could prove true of Judge Berman in Brady v. NFL.

2. With that caveat out of the way, Judge Berman seems very dissatisfied with how the NFL investigated and punished Brady

Published reports of Judge Berman’s remarks on Wednesday reveal a judge deeply perplexed by the NFL’s system of justice. Most notably, Judge Berman sharply questioned why the NFL refused to let Brady’s legal team ask questions of NFL general counsel Jeffrey Pash during Brady’s appeal on June 23. Remember, Pash edited the so-called “independent” report authored by attorney Ted Wells, whom the NFL had hired to investigate the Deflategate controversy. Pash’s role in the Wells Report—the key source of information used by Goodell to punish Brady—made Pash a potentially crucial witness in Brady’s appeal. Judge Berman went so far as to warn the NFL that an arbitration award can be vacated if a key witness was made unavailable in an arbitration hearing.

The significance of Judge Berman’s commentary about Pash’s availability is that it cuts to the lawfulness of the NFL’s process—the very issue that lies at the heart of the legal dispute over Brady’s suspension. Last week Judge Berman openly wondered why the NFL would conclude that Brady played some role in deflating footballs when there is no direct evidence of Brady’s involvement. Those comments attracted headlines, but Judge Berman’s critique today should be far more worrisome for the league: It specifically concerns process, rather than facts or evidence. If Judge Berman concludes that the NFL’s process in investigating and punishing Brady was fundamentally unfair, he would be inclined to rule for Brady.

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Judge Berman highlighted other perceived problems about how the NFL went about punishing Brady. The judge was especially baffled why Goodell would compare Brady’s possible knowledge of a scheme involving the air pressure in footballs—an equipment issue—to the use of drugs and steroids. Recall that in his decision upholding the suspension, Goodell wrote, “In terms of the appropriate level of discipline, the closest parallel of which I am aware is the collectively bargained discipline imposed for a first violation of the policy governing performance enhancing drugs; steroid use reflects an improper effort to secure a competitive advantage in, and threatens the integrity of, the game.” As attorneys for the NFLPA have insisted in their pleadings, NFL rules dictate that first-time offenses of equipment violations—even those that “affect the integrity of the competition and can give a team an unfair advantage”—only result in fines. Also, the NFL’s rules on drugs and steroids are part of a separate policy from Article 46 and its “conduct detrimental” language. Here again Judge Berman seemed dissatisfied with the NFL’s process: Goodell’s choice of analogy is vulnerable to being deemed irrelevant and inconsistent.

Further, Judge Berman raised questions about the legal relevance of Brady’s alleged “general awareness” of a ball deflation scheme prior to the AFC Championship Game. The judge concluded that “general awareness,” a phrase used by Wells in his report to conclude that Brady was probably at fault but a phrase not contained in any collectively bargained policy, was inapplicable. While Judge Berman could still find that Goodell possessed other grounds to punish Brady, his remarks underscore the vulnerability of the NFL to a key process argument: the rationales and policies used to punish Brady have arguably changed.

3. Settlement seems like a long shot, but after today, the NFL might want to offer Brady a better deal

As I wrote ahead of Wednesday's hearing, the NFL and NFLPA seem unlikely to settle. It’s possible, however, that Judge Berman’s critical remarks about the NFL’s process could cause the league to back off its apparent insistence that Brady admit to participating in a ball deflation scheme. Brady has little incentive to make such an admission. For starters, he insists that he is innocent. He would also potentially commit perjury by admitting to participating in a scheme that, while previously under oath, he denied. Lastly, after today Brady is probably more confident than ever that Judge Berman will rule in his favor.

That said, if the NFL offers Brady a deal in which he is only required to admit to being less cooperative than he could have been—without admitting to any role in or knowledge of football deflation—Brady might take it, especially if the accompanying penalty is only a fine.

Report: Tom Brady will only consider suspension without guilt admission

Some may wonder why Brady would settle if he did nothing wrong and if Judge Berman seems to favor his case. They can also point out that Brady’s level of cooperation was good enough for Wells to testify that he did not think Brady should have been punished for non-cooperation. Yet there are at least three reasons why a settlement might still work for Brady.

First, as explained above, Judge Berman’s critical statements about the NFL do not necessarily mean he will rule against the NFL. To reiterate, one can never be be certain what a judge us actually thinking.

Second, a settlement is a compromise that requires give and take. Typically the parties to a settlement are not elated with it, but both can live with it. Brady would need to offer something to the NFL to convince it to settle, or else the league would roll the dice with Judge Berman and, potentially, a three-judge panel on the U.S. Court of Appeals for the Second Circuit.

Third, a settlement would provide Brady with closure. Don’t underestimate the value of putting an end to a miserable experience as litigation tends to be for parties. Deflategate would be over. Brady could return his entire focus to football and getting ready for the season. If the only tradeoff for Brady is an admission that he was not fully cooperative and if the penalty is merely a fine or even a one-game suspension, it might make sense for Brady to take it.

Along those lines, let’s suppose there is no settlement and that Judge Berman rules in Brady’s favor by vacating the four-game suspension. There would be euphoria in New England, but the legal controversy would not be over. Judge Berman would only be vacating the actual arbitration award—Goodell’s decision to uphold the four-game suspension. It’s possible the NFL could conduct another hearing to review Brady’s four-game suspension, although clearly Goodell would not be the presiding officer for that second NFL hearing. In this scenario, Brady would be able to play as usual, but a second NFL hearing would be looming over his head. NFLPA attorney Jeffrey Kessler has asked Judge Berman to take possibility of a second NFL hearing off the table, but it’s not clear that Judge Berman would go along with such a stipulation.

Regardless of whether there is a second NFL hearing over Brady’s four-game suspension, the NFL would likely appeal Judge Berman vacating Brady’s suspension to the U.S. Court of Appeals for the Second Circuit. This would launch a process that would take months. And if the Second Circuit ultimately reverses Judge Berman, Brady would be required to serve his suspension at a later date. This could perhaps occur during a crucial point in the Patriots’ 2015 season or at the start of the 2016 season. To be sure, it’s possible that the NFL would not appeal to the Second Circuit, but that seems unlikely. Consider the enormous amounts of energy, time and money the league has already spent in pursuing its punishment of Brady. I have a hard time envisioning the NFL, one of the most litigious professional sports leagues around walking away from a legal fight.

Whether the NFL and NFLPA make any progress towards a settlement will be known by Aug. 31, the next court date in this litigation, Judge Berman has required both Brady and Goodell to attend court that day. It will be the most pivotal hearing yet since it will likely be the last one before a ruling. If no settlement is reached, Judge Berman is expected to issue a ruling by Sept. 4. And then the appeals would likely commence and the Deflategate saga would spill into the 2015 season.

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 and he teaches “Intellectual Property Law in Sports” in the Oregon Law Sports Law Institute.

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