Window closing on chance at settlement in Tom Brady case
New England Patriots quarterback Tom Brady heads to the field for practice at training camp Friday, July 31, 2015, in Foxborough, Mass. Credit: AP / Charles Krupa
With Tom Brady, Roger Goodell and attorneys from the NFL and NFL Players Association scheduled for another court appearance Monday in New York, we are getting closer to decision time for District Court Judge Richard Berman about whether Brady will play the first four games of the season.
But Berman's preferred outcome is to not make a decision at all. The judge has been pushing both sides to reach a settlement regarding Brady's punishment for allegedly being involved in a plan to use deflated footballs in the AFC Championship Game. And with time growing short before the Patriots open the season Sept. 10 and Berman's intention to rule on the matter by Friday, it appears there is at least a glimmer of hope that a settlement could be within reach.
With emphasis on the phrase "could be," because predicting these kinds of things can be tricky. But my sense is that there is at least a chance that something can be worked out before Berman is forced to come out with a yes or no decision on the case.
"I would say it's 50-50 at this point," a person familiar with the inner workings of the case said. "There is a lot of uncertainty with which way Judge Berman might rule, and I think that is at least creating an opening for a settlement. I'm not saying there will be a settlement, but I'm saying there could be."
That kind of assessment was not the prevailing one earlier this month, when both sides seemed rooted to their positions. Brady's camp has been adamant that there should be neither a suspension nor an admission of guilt. The NFL wanted the four-game sanction to stand and Brady to acknowledge the findings of Ted Wells' report, which concluded that it was "more probable than not" that the footballs were purposely deflated before the game and that Brady was at least "generally aware" of the tampering.
Just a few weeks ago, the outcome seemed to be a fait accompli: Both sides were willing to have Berman make a ruling, and the loser would look to have the decision overturned in the Second Circuit Court of Appeals.
Neither side has publicly said what it would take to reach an agreement, but the risks associated with not settling are coming into focus for both sides.
"There are pressure points for both sides," a person involved in the case said. "The timing of the judge's decision and the start of the season, plus the unpredictability of what a federal judge might rule, are creating pressure for everyone involved."
The NFL clearly is not happy with the negative publicity surrounding the case, especially as the season approaches without a resolution. Even Giants president and co-owner John Mara, who has supported Goodell's decision to uphold Brady's suspension, has acknowledged that he is "sick" of the attention on the case.
If no agreement is reached, it will be because both sides believe it is to their advantage to get a decision from Berman and proceed from there.
If Berman, who has been openly critical of the NFL in his questioning of league attorney Daniel Nash during two open court sessions in recent weeks, rules in favor of Brady, there is an immediate victory for the quarterback and NFLPA attorneys. His suspension likely would be overturned and he almost certainly would be eligible to play for the entire 2015 season, even if the league appeals.
If Berman rules for the league, Brady would file an appeal and seek an injunction that would allow him to play until the case is resolved. It is uncertain how long the appeals court would take to rule on the matter, but it's conceivable a ruling wouldn't come until after the season ends.
The downside of having Berman issue a ruling is that the controversy would continue through the appeals process. Neither side seems particularly interested in having that happen, as the intense scrutiny of the case has been emotionally draining. The prospect of additional court hearings would only prolong the turmoil.
The confluence of these factors, combined with the approaching deadlines of a Berman ruling and the start of the season, appears to have created at least the possibility of a middle ground.
The NFL, which remains confident that case law is on its side, might be willing to have the suspension reduced, possibly by two games. But the league almost certainly will not consider a settlement without a suspension.
The NFL also likely will demand that the NFLPA agree to uphold Article 46 of the collective-bargaining agreement, which allows Goodell to impose discipline regarding matters of conduct detrimental to the league. The league will not accept an agreement that either challenges or overturns that power.
Brady reportedly was willing to accept some form of discipline, possibly for acknowledging his mistake in destroying the cellphone he had used from November 2014 through early March 2015. His preference is to pay a fine and not serve a suspension.
The NFL wants an acknowledgment of wrongdoing from Brady, but there could be a way to agree on a statement in which the quarterback acknowledges in a broader sense that mistakes were made and that he is the one who ultimately bears responsibility for the preparation of footballs used in the game. Brady is unwilling to say he or Patriots equipment staffers John Jastremski and Jim McNally actually tampered with the footballs. But a careful wording of his acceptance of some accountability could be enough for him to not admit guilt yet still accept a sanction that upholds the NFL's authority to impose such a penalty.
So maybe, just maybe, there's a chance to resolve the matter once and for all.
That day can't come soon enough. Not for Brady. Not for Goodell.
Not for the rest of us.
Bob Glauber retired in 2022 after covering the NFL for nearly 40 years. He was selected in 2021 for the Bill Nunn Career Achievement Award by the Pro Football Writers of America, and is a three-time winner of the New York State Sportswriter of the Year by the National Sports Media Association. President of the PFWA for the 2018-20 seasons, he is the author of “The Forgotten First” and “Guts and Genius.”
