By Michael Hurley, CBS Boston
NEW YORK (CBS) — It’s important to note that any stories written and any opinions expressed based on the events in courtroom on Thursday afternoon are, by nature, speculative. The panel of three judges could have had various reasons for asking the line of questioning which they employed, and their demeanor during the appeal hearing does not necessarily indicate exactly how they will rule in the case of the NFL vs. Tom Brady.READ MORE: What To Know Before Booking Your Summer Trip
Yet, their words Thursday may have tipped their hands, and if we were willing to say both days in Judge Richard Berman’s court went down as instant victories for Brady, then we should say that Thursday’s hearing in Judge Robert Katzmann’s court was a loss.
That is not to say, however, that Judge Katzmann, Judge Denny Chin and Judge Barrington Parker Jr. did not hit NFL attorney Paul Clement with a number of questions which painted the league in a negative light. It is merely a note that the panel had a much harsher line of questioning for Jeffrey Kessler, who was representing Brady on behalf of the NFLPA.
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To this point in the 14-month “DeflateGate” saga, Kessler has emerged as a master of the language, an artful persuader and a convincing orator. Yet on Thursday, he was never really able to put those skills on display, as the judges peppered him with a line of questioning throughout his 30 minutes in front of the panel.
The questions at the U.S. Court of Appeals for the Second Circuit in New York centered largely around Kessler’s own comment in a previous hearing that uniform policy did not apply in this case. Neither Brady nor commissioner Roger Goodell were present for the hearing. Considering the NFLPA later used the uniform policy to argue against Goodell’s ruling, Kessler had to explain this perceived discrepancy and as a result lost precious time. Each party was only given 15 minutes to present oral arguments, though both sides ended up getting about a half-hour.
The judges also focused heavily on Brady’s cell phone, particularly the destruction of that phone in the midst of the investigative and disciplinary process. Even though Kessler eventually stated that Ted Wells’ investigative team had access to every bit of evidence that would have been on that phone, the fact that the judges seemed to place so much weight on that interference with the league’s investigation might not bode well for Brady.
“Anybody within 100 yards of this proceeding would have known that the cell phone issue raised the stakes to this thing,” Judge Parker told Kessler. “It turned it from air in a football to compromising the integrity of a proceeding that the commissioner convened.”
Kessler responded, “Mr. Wells never asked to get the phone. That’s undisputed. He wanted a reduction of texts. He never wanted the phone.”
Kessler’s main argument on Thursday centered on the idea that an arbitrator cannot base discipline on new evidence presented at an appeal hearing, but rather that only the initial facts used to determine the initial punishment must be considered.
“Why can’t an adjudicator take an adverse inference?” Parker asked. “Brady’s explanation made no sense. They weren’t credible.”
“An adverse inference can be drawn,” Kessler replied. “It can’t be the basis for the discipline.”
Judge Chin then noted that the whole argument might be moot, considering the punishment was not increased after the consideration of this new evidence. Instead, the initial punishment was merely upheld, bolstered by additional evidence.
Judge Chin asked Kessler, “When you read all the evidence, the text messages, the evidence of the ball tampering was compelling if not overwhelming. And the finding that Brady knew about it is encouraged. So how do we as appellate judges second-guess the four-game suspension?”
Kessler said that the consideration should be about the arbitrator’s decision and not be about the facts — facts which Kessler himself was willing to accept for the sake of making his case.
“I would not ask you to second-guess the facts,” Kessler said. “Do we accept the facts? I have to accept the facts for the purpose of this proceeding. We’re not asking you to review the facts. I don’t know if I agree with the facts, but that’s different from accepting the facts for the purpose of this appeal.”
Judge Parker seemed to be willing to apply a different standard to an arbitration case than he would a judicial case.
“If federal rules apply to arbitrations, your point would be well taken,” Parker told Kessler. “But this is arbitration. It’s casual. It’s sometimes even down and dirty.”READ MORE: Rideshare Customers Frustrated By Driver Shortage
At one point, Parker asked Kessler directly, “Are you suggesting [Goodell[ was just out to get Mr. Brady?”
Kessler replied: “I think he was out to protect what they did with the $3 million study. … This is embarrassing for the league … that they never measured temperature or wetness … and they didn’t know there was a law called the Ideal Gas Law that balls were going to deflate.
“I’m reacting, I’ll be very honest, because I sense that you’re all influenced by your view of the facts,” Kessler told the three judges.
“We’re influenced by the briefs you gentlemen filed,” Judge Parker stated, ending that discussion quickly.
Kessler then stated his issue with the NFL using the Paul, Weiss firm to lead the investigation into the matter and then use the Paul, Weiss firm as the lawyers in the arbitration hearing. The Paul, Weiss firm’s access to investigative notes, Kessler argued, helped shaped that team’s arguments for the appeal hearing and was therefore fundamentally unfair.
As he attempted to make his next argument, he was stopped by Judge Katzmann, ending his time at the microphone.
Judge Katzmann certainly seemed more critical of Clement and the NFL’s side than he was Brady and the NFLPA’s. Judge Katzmann interrupted Clement no more than two sentences into the attorney’s statement and asked him if the ruling after the appeal (the destroyed cell phone) should have been considered separately.
“Should he been given additional notice about non-cooperation?” Katzmann asked Clement. “It started off as ball tampering and then there was the addition of the destruction of the cell phone. Shouldn’t that have been a separate discipline?”
Clement replied, “I think as the commissioner himself found in the appellate decision, this idea of failure to cooperate. There was failure to cooperate from the beginning … then destruction of cell phone goes to out-and-out destruction. But I think the commissioner made a finding that interference in conduct detrimental hearing would itself be conduct detrimental. I don’t think the commissioner ever parsed these out, two games for one, two games for the other. It was a four-game suspension for the behavior.”
What was noteworthy to any keen “DeflateGate” follower was that Clement twice stated as fact a statement from Goodell which was proven to be a lie. That lie was that in Brady’s testimony, when asked about his increased conversations with John Jastremski after the AFC Championship Game, the conversations focused solely on preparing footballs for the Super Bowl. However, when Judge Berman released the appeal hearing transcript, it showed Brady telling Goodell that some of this conversation did indeed focus on the ball-deflation accusations that were in the media.
Yet Clement said, “Brady’s in near-constant communication with Mr. Jastremski. [They held their] first and only meeting ever in the quarterbacks room. The explanation [from Brady] for that is they’re preparing balls for the Super Bowl.”
This idea, which came from Goodell in his ruling to uphold his own suspension, has been reported as a lie by several outlets. (Some other outlets, too.) Yet in the courtroom on Thursday, the statement went unchecked by the panel. (There’s a chance Kessler might have wanted to address it, but he simply never had a chance. The judges kept him on his heels for most of his time in front of them.)
Judge Parker issued a series of questions to Clement about whether a slightly underinflated football would really provide any advantage. Clement’s main response was that while an advantage may be a matter of opinion, the fact is that manipulating the footballs affects every offensive play by the Patriots. Therefore, Clement argued, the impact of the manipulation would be much greater than one player violating a rule. It also was, simply, a violation of established rules.
“If you had a team full of really fast players, you would probably benefit from a 120-yard field,” said Clement. “And if you had slow physical players, you would benefit from an 80-yard field. But the league has a rule for 100-yard fields.”
Judge Katzmann asked Clement why the rules for a Stickum violation (a small fine) would not apply in a case like this.
“… The gross disparagement between Brady’s punishment and the Stickum penalty,” Katzmann said. “How does that not lead to the conclusion that the commissioner was imposing his own brand of industrial justice?”
“The argument was never made in the court. The commissioner is not supposed to be clairvoyant,” Clement said. “If he said ‘this is exactly like Stickum’ and said ‘I’m going to give the punishment for that,’ …. I’d be here defending that as within his discretion. But the fact that he didn’t do that is both also within his discretion and I should add, perfectly reasonable.”
While most would argue this entire drawn-out process has been anything but perfectly reasonable, the feeling inside that courtroom, based on the words spoken by the three-judge panel, seemed to indicate that the saga may well live on for some time more.MORE NEWS: School Bus Driver Arrested In Norfolk After Students Find Loaded Gun