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SportsColumnistsBob Glauber

Law professors give opinions on Tom Brady's appeal

New England Patriots quarterback Tom Brady arrives for

New England Patriots quarterback Tom Brady arrives for his appeal hearing at NFL headquarters in Manhattan on Tuesday, June 23, 2015. Photo Credit: AP / Mark Lennihan

Robert Blecker is convinced Patriots quarterback Tom Brady did not illegally tamper with the footballs in the AFC Championship Game, and that the NFL's investigation into the matter is filled with false accusations and exaggerations designed to make Brady look guilty. The photograph on page 175 of the Wells Report only confirms his suspicions.

Blecker, a professor of criminal law at New York Law School, had to look at the picture several times before realizing something looked fishy. The picture was included as part of a study by Exponent, a company hired by attorney Ted Wells to conduct experiments aimed at determining if footballs used in similar conditions would deflate as much as the Patriots' footballs did in the conference title game.

It showed the needles on the gauges used by officials at the game to measure the footballs. One needle measured 1.4 inches and the other .9 inches. But wait a minute. The shorter needle didn't actually measure .9 inches. It was more like .7. Why? Because in the photograph of the shorter needle, the ruler was placed at 0 at the bottom of the needle's base. In the photo of the longer needle, the ruler was placed at 0 at the top of the base.

Blecker does not think the different positioning of the rulers was an accident.

"They shifted the ruler," said Blecker, who has followed the case closely and was in federal court in New York on Wednesday when a federal judge heard arguments from attorneys on both sides. "You're telling me this sophisticated company [Exponent] doesn't know how to put a ruler on 0 point? You're going to tell me that's an accident?"

Blecker, who has read the Wells Report several times, believes it was not convincing enough to conclude Brady was guilty of orchestrating a scheme to deflate the footballs. The picture of the needles only adds to his suspicions that the league was looking to nail Brady despite questionable evidence. Blecker therefore was not surprised to see on Wednesday that U.S. District Court Judge Richard Berman expressed similar skepticism about the NFL's case and about the league's handling of the appeals process.

"[Berman] was openly skeptical to the league's position that they clearly had found that Brady was generally aware of tampering on that day in that game," Blecker said.

"He let the league know that they had problems with notice (for not spelling out clearly that he could be suspended for his actions, including the destruction of his cell phone). There had never been a suspension for lack of cooperation, and no one had ever been suspended for tampering with equipment."

Like many of Brady's defenders, Blecker subscribes to the belief that the footballs used in the first half of the playoff game against the Colts - with 11 of 12 measuring well under the 12.5 PSI minimum prescribed by NFL rules - were underinflated because of weather-related conditions at the game. In other words, it was a naturally occurring event that the footballs were underinflated because the first half was played in cold, damp conditions.

Wells contends that it was "more probable than not" that the footballs were illegally tampered with before the game and that Brady was at least "generally aware" of the activities of Patriots employees Jim McNally and John Jastremski, who were tasked with handling the footballs leading up to the game.

Blecker isn't buying it.

"Can science and environmental factors explain the drop in pressure? The answer is yes," said Blecker, who said he is not a football fan.

Blecker is not alone in doubting the results of the Wells Report, and he's also convinced that Brady didn't receive a fair hearing in his appeal, mostly because NFL commissioner Roger Goodell, who was involved in meting out the original four-game suspension announced by league vice president Troy Vincent, presided over the appeal. Judge Berman's line of questioning showed he, too, was highly suspicious of the process. Berman grilled NFL attorney Daniel Nash repeatedly about what the judge considered the league's questionable handling of the appeal, including an unwillingness to make Wells Report co-author Jeff Pash, the league's lead attorney, available to be cross-examined at the appeal.

But it's still uncertain which way Berman will rule, and in many ways, the Patriots' season hangs in the balance over what comes next. If he sides with Brady and overturns Goodell's decision, then the quarterback will most likely be eligible to play the entire season. The NFL could seek an injunction reinstating the suspension while the league appeal's Berman's ruling, but the negative public relations fallout could prompt the NFL attorneys to simply appeal Berman's decision with the Second Circuit Court of Appeals and await a ruling that might not come for several months. If the NFL wins on appeal, it could then reinstate the suspension, which would most likely come sometime next season unless the case is heard quickly.

Berman could very well rule in favor of the league, however. Despite the clear sympathy he has expressed to Brady's side over what the judge considers to be questionable handling by the league -- Berman at one point figuratively threw up his hands when Nash defended comparing the four-game suspension to the same penalty for a player testing positive for steroids a first time - he could still side with the league.

"I would be careful not to read too much into Judge Berman's line of questioning," said Gabe Feldman, a Tulane University law professor and the director of the school's sports law program. "Rather than tipping his hand, Judge Berman may have been trying to tip the NFL closer to settlement by highlighting the potential weaknesses in their case."

Settlement discussions are ongoing, but so far, neither side has shown a willingness to move enough off its respective position.

Brady does not want to admit guilt of any sort, although appears to be willing to accept a fine or perhaps a shorter suspension for his non-cooperation stemming from the cell phone destruction. But the league is concerned that settling this case would simply open the door to other players challenging the league in court on future suspensions, something the NFL wants to avoid. The odds are with the NFL at this point, although it's still anyone's guess how Berman will rule.

"The potential road to victory in this case for the NFL is clear. Arbitration awards are, as a matter of law, difficult to overturn," Feldman said. "Judge Berman's questions may have been designed to show that the NFL Players Association also has a path to victory and that settlement is a safer alternative for both sides."

Even Blecker, despite his contention that Brady didn't do it, acknowledges Berman could rule against him. If that's the case, the NFLPA likely would appeal the decision and seek an injunction to allow Brady to play while the case is heard.

"[Berman] might be in a bind," Blecker said. "It may well be that the right decision would be to exonerate the Patriots because there is insufficient evidence. But he also might know that it's not his decision to decide, that the federal court is to defer to the [NFL's] decision."

Fascinating legal theater, and we're getting down to the wire. Berman has told both sides, including Brady and Goodell, to be in court on Aug. 31, where the judge will presumably try to prod them toward a settlement. If none is forthcoming, then he plans to rule by Sept. 4. That's six days before the Patriots opener against the Steelers.

Decision time is almost here.


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