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The ancient principle of law is qui tacet consentire—to be silent is to consent. In the case of Tom Brady, the Patriots, the National Football League, Roger Goodell and the acceptable amount of air in a football, it’s probably necessary to barber the old maxim a bit: Please tell your lawsuits to shut up.
This preposterous burlesque has gone on for more than a year, and everyone has played so many parts that it’s impossible to determine anymore who is taking on which role. Is Tom Brady a wounded innocent, a common cheat, a defender of personal liberty or simply a guy who got crossways with an irrational employer bent on preserving its authority over its hired help? Is Goodell a tyrant, a fool or a jumped-up bureaucrat whose toes haven’t touched the bottom of the pool in two years? And isn’t it time for this whole thing to be over?
On Monday, a federal appeals court overturned the ruling of a lower-court federal judge and reinstated the four-game suspension the NFL levied against Brady as a result of charges that some members of the New England staff had deflated some footballs in the 2015 AFC Championship Game, which the Patriots won 45–7 and probably would have won by that same score had someone substituted a live ferret for the game ball. In its 2–1 decision, the Second U.S. Circuit Court of Appeals in New York merely ruled that Goodell was within his rights to suspend Brady. The three-judge panel threw the case back to Judge Richard Berman, who’d reversed the suspension, and told him to get it right this time. The court took no position on the merits of the dispute, probably because the court members have not engaged in such a frivolous dispute since most of them were in kindergarten.
“Our role is not to determine for ourselves whether Brady participated in a scheme to deflate footballs or whether the suspension imposed by the commissioner should have been for three games or five games or none at all. Nor is it our role to second-guess the arbitrator’s procedural rulings,” the majority declared. “Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act.”
Of course, this decision will set off another spasm of outrage. The New England fans, who have mastered the art of being professional victims over the last year, will howl in outrage. Around the league, fans of other franchises likely will be overjoyed that the Cheatriots—and their dark lord, Belicheat—once again have been run to ground. Perhaps our sports-talk stations once again will play host to earnest discussions of the Ideal Gas Law and arguments about Robert Griffin III will transform themselves into learned disquisitions about Robert Boyle.
It remains hard to believe that this whole thing has gotten as far as it has. First of all, even if everything the NFL believes about the Patriots and Brady is true, then at worst this is little more than an episode of gamesmanship, the NFL equivalent of a corked bat or hockey stick with an exaggerated curve to it. Second, it has been clear from the start that Goodell has the power to do what he did. The NFL Players Association gave him that power through a perfectly normal process of collective bargaining. If the NFLPA is angry about how Goodell exercised this power, it should renegotiate the hell out of it in the next CBA. If nothing else, they should firm up mushy language like “conduct detrimental,” which can mean, well, anything the commissioner wants it to mean when he wakes up in the morning.
However, the basic facts long ago surrendered to exaggeration and unmoored paranoia. Goosed by the inflamed rhetoric of our latest drug hysteria, this one concerning performance-enhancing drugs, it has become easy for fans and pundits to yell, “Cheater!” at the least provocation, which this certainly is. At the same time, some people in and around the New England franchise, including its most fervent adherents, are unshakable in their belief that the NFL has engaged in a conspiratorial pursuit of the Patriots. It became less about Goodell’s power than it was about how he’d used it—which, admittedly, is a target-rich environment given the commissioner’s erratic performance in disciplinary matters. (His handling of the Ray Rice situation is likely to go down in generations of business-school textbooks as a case study in how easy it is to mismanage a problem into a catastrophe.) By now, the case has become such a breeder reactor of hot takes that it may live on forever.
The worst thing that could happen now would be for everyone to continue to dig in. Berman should do what the appeals court has instructed. Brady and the Patriots should step back and not push this thing any further through the judicial system. Goodell should take the narrow ground on which he won the appeal, declare victory and quietly reduce the suspension to one game or two. Then we can all move on to the NFL draft and start arguing about which guys in the first round may have blown a little weed in their college days. The Outrage Industrial Complex is the only permanent thing in our lives these days.