Tom Brady-NFL Appeal Hearing Primer: Does NFL Have A Chance To Actually Win?
By Michael Hurley, CBS Boston
BOSTON (CBS) -- So, here we are, yet again. DeflateGate, Day 410.
But there is an end in sight. Maybe. What takes place in the Thurgood Marshall Courthouse in New York on Thursday afternoon could go a long way toward finally closing the book on the most needless "scandal" in sports history.
It is in that courthouse -- in room 1703, before Chief Judge Robert Katzmann, Judge Barrington Parker Jr. and Judge Denny Chin -- that the NFL will make what could be the final public argument in the case against Patriots quarterback Tom Brady.
Granted, even if the world is granted a sense of finality from these proceedings, it won't come for quite some time. As Sports Illustrated's legal expert Michael McCann wrote, decisions at this level typically take 10-14 months from start to finish. So, with the NFL having filed its appeal back in September, that puts the time frame on a decision somewhere between June and October.
June. And October.
That's an exhausting thought, considering the "DeflateGate" fire has been burning at varied levels of intensity for 14 months already, but again, Thursday's proceedings could at least provide a light at the end of the proverbial tunnel.
That is, of course, assuming the three-judge panel rules to uphold Judge Richard Berman's decision to vacate the four-game suspension issued to Brady by commissioner Roger Goodell. The judges could rule to send the case back to Judge Berman's courtroom, which would realistically extend the saga for another six months to a year. Or they could rule to overturn Judge Berman's decision, which would put the pressure on Brady and the NFLPA to decide a course of action. After fighting to this degree, and after winning at the federal court level, it would seem unlikely for Brady and his camp to simply accept such a decision peacefully.
At the same time, I don't think anybody -- Brady included -- wants this case to end up in the Supreme Court. It's already gone far past the point of absurdity in terms of time and money expended on such a frivolous issue, but it would look infinitely worse for either party to take this case to such a high level -- especially considering it would look like a losing fight either way.
As far as what to expect, it's hard to say exactly, but here's my best guess.
What The NFL Will Argue
For the NFL, the argument won't change. The NFL's lawyers spent most of their time in Judge Berman's courtroom telling the federal judge that he had no power or authority to rule. That tactic proved to be a failing one, because telling a judge he has no authority in his own courtroom after you've filed the lawsuit yourself is typically not a winning strategy.
However, there's a chance that these three judges may be more open to the idea that Judge Berman was powerless and should have deferred fully to the arbitrator (Goodell) than Berman himself.
The NFL has "The LeBron James of Laywers," Paul Clement, arguing its case, which might help. Or, if the three-judge panel sniffs out the inherent bias and the procedural missteps of Goodell in the process, Clement's presence may prove to be meaningless. (The NFL has reportedly spent $12.5 million in legal fees already on this particular case, and that hasn't done them much good.)
Back in Berman's courtroom, the linchpin of the NFL's argument was Article 46 of the CBA. The NFL argued that this article granted the commissioner sweeping powers to discipline players at his discretion. Yet, in Judge Berman's eventual ruling, he actually used Article 46 against the NFL.
"NFL precedent demonstrates that, in Article 46 arbitration appeals, players must be afforded the opportunity to confront their investigators," Berman wrote in regard to the NFL not making co-lead investigator Jeff Pash available to Brady during the appeal hearing.
To me, the citing of this particular article did not seem to be a coincidence, and it seemed to be a direct response to the NFL's repeated insistence that Article 46 granted the commissioner unassailable power and therefore no federal judge could intervene in arbitration matters.
Now, considering these three judges won't be subjected to the same level of having their powers questioned (though they have read the transcripts of the Berman proceedings), perhaps they interpret Article 46 of the CBA closer to what the NFL has argued. That may well be the NFL's best (and only) hope of winning.
What Brady's Camp Will Argue
Tom Brady has a decided advantage heading into this hearing for two main reasons.
One: He has already won in federal court. McCann noted that Berman's rulings have only been overturned 8 percent of the time.
Two: He has Jeffrey Kessler arguing for him. The man has a sterling record when going up against the NFL, and his persuasive skills have proven to be very effective throughout the entire process.
In my mind, Kessler knew he had this entire case won in the middle of Brady's appeal hearing with Goodell back in June. It came immediately after Kessler finished questioning Wells. Kessler made the following proposal:
"One other thing on the record, I would like the NFL to think about this: We have had this issue back and forth and we propose that there not be confidentiality in this matter and the NFL said they wanted confidentiality and we agreed to something and it was there. I would like to propose on behalf of the Union that we can release this transcript of this today. I would like the NFL to think about that. That's our proposal. Despite that, I'm not talking about any of the underlying things, but at least the transcript. I think there is a great public interest in this and in the interest of transparency, that would be something that we would like to see done. So I will submit my proposal for the NFL to consider as to whether that's possible or not."
The appeal hearing process was so flawed, so mismanaged and so inherently unfair that before it was even over, Kessler knew that anybody who could read the transcript would find it impossible to believe in the NFL's decision-making process in the matter.
The response from Daniel Nash, the NFL's lawyer, and Gregg Levy, a lawyer who was running the proceedings for the NFL because Roger Goodell is not an attorney and was therefore not qualified to properly run an appeal hearing, was short and sweet. Both quickly denied the request and opted to go into an immediate five-minute break.
MR. LEVY: Pending the agreement, the transcript is confidential.
MR. NASH: Yes.
MR. KESSLER: Well, we already have that agreement, which is why I have to make this proposal --
MR. NASH: Yes, we have that agreement.
MR. KESSLER: -- in order to see if the NFL would agree to that.
MR. LEVY: Five minutes.
Levy and Nash, being experienced lawyers, likely knew exactly what Kessler knew. Hence, the swift rejection of going public with the proposal.
Unfortunately for the NFL, Judge Berman ruled to unseal that transcript, despite the NFL's protest, and so the public at large was able to peek inside the curtain at how the NFL operated its appeal hearing. The flaws were clear to the average reader, and they were clear to Judge Berman, and they'll likely be just as clear to the three-judge panel on Thursday.
Also working in Brady's favor is the fact that Berman made three distinct rulings:
1.Brady did not have proper notice that a four-game suspension was an expected punishment if a ball deflation plan had indeed taken place.
2. Brady did not have access to Jeff Pash, the NFL's legal counsel who was named by the NFL as co-lead investigator along with Ted Wells.
3. Brady did not have access to the same investigative files that the NFL's side did prior to the appeal hearing before Goodell.
For the decision to be overturned, as explained by McCann, the judges would presumably have to rule that Berman was wrong in all three instances. Considering Berman is an experienced judge, it's hard to believe logically that he misfired so badly on all three rulings.
(Plus, this is just my opinion, but based on the way Berman led the proceedings and then later ruled in writing, I feel he left himself some additional areas to rule if the case does get kicked back to him. For the sake of everyone's time and energy, I believe everyone hopes that the case does not get that kind of extended shelf life. But if it does, I believe Berman will be able to find even more areas to rule.)
Ultimately, the feeling is that Brady's strong case will be affirmed, but remember back when the case was going into Berman's courtroom, so many things that weren't supposed to be discussed or put on trial were indeed brought up by Berman. So with regard to Thursday, it's best to be prepared for the unexpected.
And then, hopefully -- mercifully -- a final resolution.
You can email Michael Hurley or find him on Twitter @michaelFhurley.
