The seemingly endless saga known simply as "Deflategate" heads back to federal court in New York on Wednesday, but not before a last-ditch effort to reach a settlement between the NFL and suspended Patriots quarterback Tom Brady.
Brady, NFL commissioner Roger Goodell and lawyers for both sides met for nearly four hours of talks on Tuesday at an undisclosed location in New York, a source familiar with the situation told Newsday. But the two sides couldn't come up with a settlement, meaning that a scheduled hearing before U.S. District Court Judge Richard Berman will proceed on Wednesday.
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Brady, who has been told by Berman that he is not obliged to be at Wednesday's hearing, is expected to be with the Patriots when they begin a series of practices with the New Orleans Saints in West Virginia in advance of a preseason game on Saturday night. It is uncertain if Goodell will appear at the hearing.
Lawyers are set to argue whether it was proper for the NFL to suspend Brady four games for his alleged role in the deflation of the footballs before the AFC Championship Game against the Colts at Gillette Stadium in January. The NFL upheld the ruling after an appeal by Brady, and the league then asked that the ruling be affirmed in federal court in New York.
Berman has said he will issue a ruling on Sept. 4, and his decision could impact whether Brady is available to play when the Patriots open the season on Sept. 10 at home against the Steelers. Brady was suspended on May 11 for the first four games of the season by NFL vice president Troy Vincent, and Goodell later upheld the suspension after a 10-hour hearing on June 23.
If Berman upholds the NFL's decision to maintain the suspension, Brady is widely expected to appeal the decision and seek an injunction that would allow him to play while his case is heard. If Berman rules in favor of Brady, the NFL is also expected to appeal the decision and seek to have the suspension upheld.
Brady and attorneys from the NFL Players Association contend that Goodell was not impartial in his role as the arbitrator because he was involved in the original discipline, while the league argues that the initial discipline and subsequent appeals process were both carried out according to CBA rules.
Berman told both sides last week to refrain from public discussions about the case, and attorneys representing the NFL and NFLPA met at least twice after Berman conducted a hearing last Wednesday.
It is uncertain how Berman will proceed with this week's court appearance. He was not expected to discuss the case at length in open court last week, but wound up having discussions with the lead attorneys from both parties. Those discussions were held in open court before Berman met privately with the two sides.
Brady did not attend practice on Tuesday, and he and the team declined comment about whether he would be in court on Wednesday. Brady also did not attend last Tuesday's practice and showed up in Berman's court. The NFL has also declined to comment about whom will attend the hearing, but Goodell is expected to be on hand.
Berman last week grilled NFL lead attorney Daniel Nash about whether there was any direct evidence linking Brady to the intentional deflation of the footballs to below the minimum 12.5 PSI required by league rules. Nash admitted that there was no "smoking gun."
"Is there a text in which Mr. Brady instructs someone to put a needle in a football? No, there is no such direct evidence," Nash said. He added that the evidence collected by NFL-appointed investigator Ted Wells "clearly indicates Mr. Brady's knowledge and encouragement of this activity."
Nash also called Brady's decision to have his assistant destroy the cell phone he had been using from November, 2014 through early March, 2015, "further evidence of culpability." Brady told the NFL on June 18 - five days before his appeal in New York - that he had asked that his phone be destroyed. In Goodell's decision denying Brady's appeal, the commissioner said Brady had destroyed the phone either the day of or the day before his March 6 meeting with Wells and his team of investigators.
Berman pointed out to NFLPA lead attorney Jeffrey Kessler that the destruction of the phone was suspicious, and Kessler acknowledged that Brady "should have conducted himself differently with Wells," but had the phone destroyed on the advice of his agent, Don Yee.
Kessler also conceded that if the footballs were purposely deflated before the game, that it would have been the result of Patriots equipment staffers John Jastremski and Jim McNally doing so independent of Brady. But the attorney does not believe the balls were actually deflated.
"We do not believe there is any real evidence that there was deflation," Kessler said.