After one final round of talks Monday involving suspended quarterback Tom Brady, NFL commissioner Roger Goodell and two surprise participants, a somber U.S. District Judge Richard Berman announced shortly after 11 a.m. in open court that there would be no settlement of DeflateGate.
Berman has presided over Brady's lawsuit against the NFL that seeks to overturn his four-game suspension for allegedly being aware of a plan to use underinflated footballs in the AFC Championship Game. He said he may rule Tuesday or Wednesday and almost certainly no later than Friday. The Patriots open the season Sept. 10 against the Steelers.
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Berman summoned Giants president and co-owner John Mara and free-agent kicker Jay Feely, a member of the NFL Players Association's executive council, to Monday's talks. NFL lead attorney Jeff Pash also was in attendance. Regardless, the sides couldn't bridge significant differences to reach a settlement.
"We understand Tom's position, and the process will work itself out," Feely said outside the Manhattan courthouse after the hearing.
The NFL was believed to be willing to reduce the suspension but appeared unwilling to settle unless Brady sits out part of the season. He has been adamant about not admitting guilt in connection with the use of deflated footballs, arguing he did not participate in a scheme to have equipment workers Jim McNally or John Jastremski take air out to make the balls easier to grip.
"I always thought this was a last-gasp effort," Tulane law professor and NFL Network legal analyst Gabe Feldman said. "The timing is still very much up in the air. All we know is that the only way this case was going to end [Monday] was if the parties settled it. Without the settlement, it's in the hands of the courts, and the parties have lost control by not settling."
It's uncertain how Berman will rule, even after he appeared highly critical of the NFL while questioning league attorney Daniel Nash on Aug. 19. Legal experts agree it is highly unusual for a federal judge to overturn arbitration rulings involving private corporations, especially in cases with a collective-bargaining agreement. But NFLPA attorney Jeffrey Kessler argued last month that nearly two dozen arbitration cases in Southern District Court have been overturned. Nash said in a letter to Berman that those cases did not apply to this dispute.
Berman has several options: He can vacate Brady's suspension, in which case the NFL almost certainly would appeal that decision to the Second Circuit Court of Appeals. The NFL then could seek an injunction to make Brady serve his suspension, but it also could appeal the case without trying to have Brady sit out.
"The question is, if the NFL loses, will they appeal? Yes," said Andrew Brandt, director of the Jeffrey S. Moorad Center for Sports Law at Villanova Law School and an ESPN legal analyst. "But will they let Brady play? Maybe. I don't know if they would go for an injunction. I think it's much less likely that they would."
Berman also could uphold the ban, in which case Brady almost certainly would appeal and seek a stay to let him play. Brandt suggested Brady would appeal to Berman for a stay to keep playing if the case goes against him. If he declined, Brady could take his request to the appeals court.
Brandt thought a settlement was a possibility, especially with the added parties on hand.
"I always thought there was a chance," he said. "You had the gravitas of Judge Berman. You bring in John Mara, you bring in Jay Feely. If there's no chance with them there, then there's really no chance. It just seems like that was it. So rather than letting this go further, he just declared no settlement. And now we wait."