NFL, NFLPA attorneys appeared in front of U.S. District Judge Richard Berman one last time before a judgment is issued. Michael McCann has five takeaways, including why Defategate is likely far from over.
U.S. District Judge Richard Berman met with attorneys for the NFL and the NFLPA on Monday for the final time before he intends to rule on whether commissioner Roger Goodell lawfully upheld the four-game suspension of Patriots quarterback Tom Brady. The meeting was brief, but significant for at least five reasons.
1. Judge Berman’s ruling is expected by Wednesday, so no need for a temporary restraining order or a preliminary injunction
Judge Berman indicated that he plans to issue his ruling by Friday, Sept. 4 and most likely by Wednesday. Brady’s suspension is set to begin on Saturday, meaning Brady—and the Patriots—can now be sure that the three-time Super Bowl MVP will have an answer from Judge Berman before his suspension would commence. The NFLPA, on Brady’s behalf, will thus not need to seek a temporary restraining order or a preliminary injunction, which are forms of equitable relief that would have restrained the NFL from carrying out the suspension until Judge Berman issued a ruling. The NFLPA had agreed to not seek such relief so long as Judge Berman issued a ruling by Friday. Had Judge Berman expressed an unwillingness or inability to rule by that time, the NFLPA would have likely sought a restraining order or an injunction. The NFLPA is now assured that a ruling from Judge Berman will occur by Friday.
2. The NFLPA would have more time to obtain a stay on Brady’s behalf, if necessary
If Judge Berman rules by Wednesday and if he rules for the NFL, he would provide Brady with an additional 48 hours to seek and potentially obtain a stay. As I explain more fully in another SI.com article, a stay would allow Brady to play while he appeals Judge Berman’s order in favor of the NFL. An appeal might not be decided by the U.S. Court of Appeals for the Second Circuit until next summer, meaning Brady could lose this round in court but play the entire 2015 season without disruption. Brady would first seek a stay from Judge Berman. If that fails, he would seek one from the Second Circuit. Stays are considered extraordinary forms of relief and are not often granted. Brady, however, may have a relatively persuasive argument for the issuance of a stay.
Even if Brady could convince a court that he deserves a stay, timing would pose a logistical hurdle. Put simply, Brady might not have enough time to obtain a stay before Sept. 5 or even before Sept 10, the date of the Patriots' first regular season game. A petition for a stay normally requires the submission of written briefs and sometimes a court hearing. While judges often respond quickly to emergency petitions, judges also have other scheduling constraints including the management of a busy caseload. It is by no means a guarantee that Brady would be able to petition and obtain a stay on the same day of Judge Berman’s order. Judge Berman issuing his order on Wednesday or sooner, however, would provide Brady with crucial time to seek and possibly obtain a stay.
Judge Berman requested the presence of Giants CEO and co-owner John Mara at Monday’s hearing. Mara, an attorney by trade, is not an ordinary owner. He is the chairman of the NFL Management Council Executive Committee, which is the ownership committee that directs collective bargaining negotiations with the NFLPA. Mara is thus very familiar with the original intent of Article 46, which governs the commissioner’s authority to discipline players. Mara is also regarded as pragmatic, and his numerous years practicing labor and employment law suggest that he might view the legal issues in Brady v. NFL with an eye for potential settlement. Along those lines, Judge Berman likely hoped that Mara’s presence in court would supply a voice of reason in what has otherwise been a series of rigid debates. The judge might have also calculated that Mara would be able to personally relay to other owners important insights on the state of the litigation.
4. Each side’s best settlement offer is likely to be made over the next several hours
While the already dim prospects for a settlement fade away by the minute, Judge Berman has provided the NFLPA and NFL with at least several final hours to strike a deal. Judge Berman declined to rule from the bench during Monday’ hearing, meaning he refrained from telling the two sides of his decision.
Don’t be surprised if NFLPA and NFL executives exchange phone calls later today or tonight. They know that once Judge Berman issues an order, only one chapter in the Deflategate litigation would come to an end. The story would continue through the appeals process, which would likely extend well into 2016. The only way for the two sides to obtain closure is to reach a settlement. A settlement can still be reached after Judge Berman issues an order, but once that order is issued, a settlement becomes less likely to occur anytime soon.
In an article last week for SI.com, I explore the potential terms for a settlement. It is clear that Brady will not agree to a settlement in which he is required to admit any role in a supposed ball deflation scheme. To make such an admission would paint him as a liar and potentially expose him to perjury charges. Remember, Brady denied, under oath, any involvement in a ball deflation scheme.
The NFL, however, is likely sensitive to the potential fallout from cutting a deal with Brady that is perceived as a victory for the Patriots star. If Brady wins through a settlement, the NFL’s theories about Brady’s alleged involvement in a ball deflation scheme would be undermined. The league might also unwittingly create incentives for future suspended players to go to court.
Bottom line: crafting a settlement that works for both sides is difficult, and they are running out of time before Judge Berman issues his order.
5. Judge Berman’s work on Brady v. NFL won’t necessarily end after issuing a decision
Judge Berman’s final hearing before issuing a decision in Brady v. NFL might not be his final hearing in Brady v. NFL. If Judge Berman confirms Goodell’s decision to uphold Brady’s suspension, Brady would likely file an emergency motion with the judge for a stay. This could lead to another Brady v. NFL hearing for Judge Berman to preside over.
Alternatively, if Judge Berman rules for Brady, it is unlikely that the judge would hold additional hearings on Brady v. NFL. The most likely outcome of Judge Berman ruling for Brady is the NFL simply appeals to the Second Circuit and waits for a decision. If the Second Circuit reverses Judge Berman’s order, the NFL could carry out Brady’s suspension at a later date.
That said, it is possible that in vacating Goodell’s decision to uphold Brady’s suspension, Judge Berman could call for additional court hearings. The judge might want to discuss conditions on how the NFL could seek to re-investigate and re-punish Brady while the league appeals Judge Berman’s order.
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.