Tom Brady and Roger Goodell (Mark Lennihan and Jeff Chiu/AP)

Breaking down the arguments that the NFL and NFLPA will make before the judge, and a guess at the outcome

By Andrew Brandt
August 12, 2015

After seven months of wrangling, the saga between the NFL and Tom Brady reaches a critical stage as Courtroom Football returns today in New York in front of a judge who seems to be guided by a healthy dose of impatience and the need for transparency.

The NFLPA and NFL filed briefs to Judge Richard Berman on Friday; the latest volley of dueling lawyers set the stage for today’s meeting. This followed last week’s NFLPA filing exposing the Brady appeal-hearing transcript, lifting the curtain, perhaps for the first time, on a player conduct appeal in front of Roger Goodell. The transcript, which was not a good look for either side, but especially not for the NFL, will likely draw more attention from the media than it will from Judge Berman. In his appellate review of the case, Judge Berman must determine if Goodell and the NFL overstepped their CBA-sanctioned authority and acted in an arbitrary manner that abused his discretionary powers.

Before getting to my thoughts on what goes on inside Berman’s courtroom today, here are the arguments—translated from legalese—in the briefs:


The union focused on a striking lack of notice to Brady regarding discipline for what he is alleged to have violated, such as:

“Competitive Integrity” and equipment tampering policies contemplated for clubs, not players;
Discipline (beyond fines) for any equipment violation;
Discipline for being “generally aware” of infractions;
Discipline for failing to hand over phone/communications.

The NFLPA will continue this line of argument today, stressing that labor law principles require the disciplined party to have notice of the provisions for which he is being punished. They will stress that the lack of notice overcomes the NFL’s catchall discipline label of “conduct detrimental.”

Beyond lack of notice, the NFLPA will attempt to point out fundamental unfairness in the disciplinary process, due to:

Discipline not being in line with precedent, the “law of the shop” argument that vacated the Adrian Peterson suspension;
Delegation of discipline—not sanctioned by the CBA—to NFL vice president Troy Vincent;
Bias of investigator Ted Wells, whom the NFL repeatedly called “independent.”


The NFL will premise its argument on the CBA, essentially saying to the busy Judge Berman: “We should not even be here in court wasting your time: The union is trying to have you give them what they couldn’t get in collective bargaining negotiations!”

The NFL will point Judge Berman, as they have already, to CBA Article 46, Sections 1 and 2, granting the commissioner the power to both discipline players and resolve appeals for actions determined “detrimental to the integrity of, or public confidence in, the game of professional football.” And, as argued in the NFL’s brief, Brady is not being disciplined for being “generally aware” of infractions—the phrasing Wells used in his report—but rather for, as the NFL alleges, being part of a “deflation scheme” with the two equipment managers (one of whom referred to himself as the “Deflator”) and for having “willfully obstructed” the subsequent investigation.

As to the union’s “law of the shop” argument, the NFL argues this situation is unique and never previously addressed, specifically “a scheme intended to vitiate the game officials’ efforts to ensure fair competition and a deliberate effort to obstruct the investigation into that scheme by first withholding, and then affirmatively destroying, potentially relevant evidence.” This is more forceful language than the league previously used in its description of Brady’s transgression and Judge Berman should question the NFL as to why the language has become stronger in front of him.

As to Troy Vincent’s role, the NFL will point to Vincent’s letter to Brady to argue that Vincent was only communicating the discipline on behalf of Goodell, not issuing it himself. The letter reads, “The Commissioner has authorized me to inform you of the discipline…” Evidently, as with the Adrian Peterson case, Vincent has become Goodell’s “reach out” guy when it comes to dealing with the players.

Regarding Wells’ independence, or lack thereof, the NFL makes a curious admission saying, “Article 46 does not require an ‘independent’ investigation prior to the imposition of discipline.” Although the NFL did not admit that the Wells report was not independent, it had publicly referred to its independence on multiple occasions. Now, in a court filing, the league is essentially saying, “We do our own investigations, independent or not.” Judge Berman may well query that.

What will happen?

The wild card in all of this is how Judge Berman will deal with these arguments. As to where he will deal with them, since it is a settlement conference, there may be a short session in “open court,” but I would expect most of the proceedings to be in his chambers.

Judge Berman will first ask about the potential for settlement conversations and communications to be done with use of his deputy. With these two sides dug in on their arguments and having a palpable dislike and mistrust for each other, that is unlikely. Hearing that, Judge Berman could then make things interesting. Well versed in all of the facts and arguments, he may well do his own questioning of the parties—including Brady and Goodell—on everything from the process to the facts of the case. He may even triangulate the proceedings, putting Brady and the NFLPA in one room and Goodell and the NFL in another room and go back and forth between them with questions and perhaps ideas.

What could Judge Berman ask? Well, it’s his case, so he can ask what ever he would like. He may ask Brady about his communications with the equipment assistants and why they did not appear at the appeal hearing. He may ask Goodell why he touted Wells’ independence if he had an existing relationship with the league. He may ask the NFLPA why they agreed to allow Goodell to have so much CBA power, especially if he had shown himself to be overreaching in that regard before the latest CBA. He may ask Goodell if there are any limits to his power over “conduct detrimental.” In short, Judge Berman may get answers—perhaps even in open court—that we all have wanted to hear for years.

Further, Judge Berman may actually try to knock heads toward a settlement in the hearing. For example, he might query Brady and say, “Would you take three games if they would offer that?” or query Goodell and say “Would you only give him one game and a fine if he admits to guilt?” With settlement talks unlikely out of court, Judge Berman could force the talks to be between the principals.

Although hope floats thanks to a judge with a healthy amount of impatience, my sense is that nothing toward a settlement happens today and we move toward oral arguments next week, and so on. However, the good news is that this process does have a deadline. Absent a settlement, Judge Berman will rule by September 4, and one party will not like the result. If nothing else seems to be working, a judge-imposed deadline may be the only thing that could spur action.

Aldon Smith (Pouya Dianat for Sports Illustrated/The MMQB)

Five Thoughts on Aldon Smith

1) In sports, as in other walks of life, greater talent equals greater tolerance. The NFL is not a democracy, and players with superior skill sets will receive different treatment from players who are seen as interchangeable parts. Smith kept his job before now despite a list of transgressions that would have ousted most players. Even the most talented of players cannot rely on that talent for an unlimited supply of lifelines, at least with the same team.

2) Smith had restructured his contract to remove a fully guaranteed salary and replaced it with a stair-step pay model throughout the year. Although it would be naive to think he and his agent did that voluntarily without a nudge from the team, Smith did pocket more than $1 million this offseason after various trigger dates. Not a bad few months for him financially.

3) Like many others, I found 49ers coach Jim Tomsula heartfelt and compassionate in his comments about Smith. However, if the 49ers were truly going to stay by Smith’s side through his troubles, why wouldn’t they keep him on their roster as he sits out an inevitable NFL suspension? Tomsula and the 49ers’ coaches and staff will be minding their coaching and administrative responsibilities. How are they going to be “walking the path” with Smith when he is in no way tethered to the team (and may perhaps be with another team eventually)?

• WHO IS JIM TOMSULA? The MMQB’s Emily Kaplan profiles the Niners coach’s unusual path to the top

4) Speaking of which, Smith will have another chance somewhere, albeit with an incentive-based contract. There is always a coach or general manager thinking he can “straighten out” a troubled player and take advantage of his talent. Again, following an expected league suspension, I don’t think we have seen the last of Smith in the NFL.

5) With all the losses the 49ers have experienced this offseason, general manager Trent Baalke probably looks at it as an opportunity to display the pipeline of young talent he has drafted and developed in recent years. Team management and the coaching staff probably look upon this season as a challenge to quiet the critics who have pre-destined their fate to failure. Nothing pleases front-office personnel more than proving the “general consensus” wrong. It is Baalke’s moment.

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