Artful in appearance, Tom Brady arrives for the hearing. (Louis Lanzano/Bloomberg via Getty Images)

Deflategate has now moved in front of a judge—one who doesn’t appear willing to suffer much nonsense. My thoughts on what went down and where things might be headed

By Andrew Brandt
August 12, 2015

After the NFL and NFLPA’s day in court in front of Judge Richard Berman in Manhattan on Wednesday, here are five takeaways based on the reports of what went on inside the courtroom during Tom Brady’s Deflategate appeal:

1. Berman’s direct and strident questioning of NFL attorney Dan Nash about evidence of ball deflation had to be concerning to the NFL. Although the appellate review was supposed to be more about process than evidence, Berman asked about what direct evidence the NFL had of deflation and of Brady’s involvement, beyond the circumstantial evidence raised in the Wells report. The NFL attorneys had to be shaking their heads at a line of inquiry questioning the evidence the league spent $3 million to collect.

2. As expected, Nash kept coming back to the league’s central argument of regarding commissioner Roger Goodell’s CBA-sanctioned power to address “conduct detrimental” to the league. Ultimately, Judge Berman is going to show his hand in this area. I was surprised by a lack of questioning about the scope of Goodell’s power, but that may be coming in the next hearing.

3. Brady attorney Jeffrey Kessler made an interesting concession, remarking to Judge Berman that Brady could have complied better with the Wells investigation, a strategic concession to open the door to settlement negotiations on the obstruction front. In doing so, though, Kessler threw Brady’s agent/attorney Don Yee squarely under the bus. Perhaps this is some NFLPA payback for having been excluded when Brady was interviewed by Wells’s team. Now, in open court, Yee was sacrificed by the NFLPA.

4. Judge Berman definitely appeared to be more strident with the league as compared to his attitude toward the union. It is too early to read the tea leaves on this, but the NFL should have some level of concern. It will be interesting to see if the hearing next Wednesday illustrates the same. If so, the settlement pendulum will swing squarely to Brady’s favor.

5. Judge Berman clearly wants this case to settle. He caused some tension and discomfort to each side, seemingly more to the NFL, with a purpose in mind. He has now ordered the parties to continue to (or begin to) negotiate before they meet again in court next week. As I say all the time, however, deadlines spur action, and the deadline here is September 4—the day the judge says he will rule absent a settlement. I don’t see much action before that deadline, and Courtroom Football will return next week.

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