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Deflategate hearing: ‘Not a good day’ for Tom Brady as judges hear NFL’s appeal

NFL attorney Paul Clement speaks to media gathered

NFL attorney Paul Clement speaks to media gathered outside the 2nd U.S. District Court of Appeals, Thursday, March 3, 2016, in New York, where he and other NFL lawyers asked a panel of three judges to reinstate the league's four-game suspension of New England Patriots quarterback Tom Brady in connection with the "Deflategate" controversy. Credit: AP / Kathy Willens

The Deflategate saga might not be over after all, and the threat of a four-game suspension for Tom Brady could be back in play.

A three-judge panel heard oral arguments Thursday in New York from attorneys representing Brady and the NFL in an appeals case that will determine whether the Patriots’ star quarterback will have his punishment reinstated.

Deflategate began Jan. 18, 2015, when the Colts accused the Patriots of using purposely underinflated footballs in the first half of the AFC Championship Game.

Three Second Circuit U.S. Court of Appeals judges grilled NFL attorney Paul Clement and NFL Players Association attorney Jeffrey Kessler, who is representing Brady, about the case. Particularly intense questioning of Kessler led several courtroom observers to suggest that commissioner Roger Goodell’s suspension of Brady could be reinstated.

“I think Brady is staring at a 2-1 defeat,” said attorney Daniel L. Wallach, who attended the hearing. “It was not a good day for him. We’re dealing with labor arbitration, where courts are loath to interfere with the determination of arbitrators.”

The appeals court judges — Denny Chin, Barrington Parker and Robert Katzmann — focused on Brady’s destruction of his cellphone just before his meeting with NFL investigators last March. Parker said to Kessler that “anybody within 100 yards of this proceeding knew that would raise the stakes.”

The judges also seemed to agree that the facts of the case indicated that Brady knew of the plan to have footballs purposely deflated before the game. Chin said the evidence of tampering with the footballs was “compelling, if not overwhelming.”

The NFL’s investigation last year found it was “more probable than not” that the balls were deflated below the 12.5 PSI minimum and that Brady was “generally aware” of the situation.

The judges also asked several pointed questions of Clement, including why Goodell likened his decision to suspend Brady for as long as a steroid offender. Clement said Goodell chose the penalty because purposely deflating footballs amounted to an effort to gain a competitive advantage.

Attorney Gabe Feldman, director of the Tulane University Sports Law Program, said it is risky to predict the outcome of the case but that the judges’ questioning of Kessler suggested U.S. District Judge Richard Berman’s ruling could be overturned.

“I was surprised how much time the judges focused on the merits of the case. They seemed to be drawing their own conclusions,” Feldman said. “It’s still an open question about whether they’ll conclude that Judge Berman was correct, that the commissioner’s power does have limits and that the hearing was fundamentally flawed. But all three judges asked questions that certainly suggested the evidence was sufficient to support commissioner Goodell’s discipline. The big caveat is that it’s dangerous to read too much into judges’ questioning.”

Brady was suspended last May by Goodell, who upheld the sanction in July after an appeal. Clement told the judges Thursday that Goodell had taken Brady’s destruction of his phone into account because it “obstructed” the NFL’s investigation. Brady then sent the matter to U.S. District Court in New York, and Berman overturned the suspension days before the Patriots’ regular-season opener. Brady played the entire season, leading the Patriots to the AFC Championship Game, which they lost to the eventual Super Bowl champion Broncos.

Brady and Goodell did not attend Thursday’s hearing.

A ruling isn’t expected for several weeks. If Brady loses, he can appeal to the entire Second Circuit Court of Appeals, but such appeals rarely are heard. If the NFL loses, it can appeal to the U.S. Supreme Court, but most legal experts agree the court wouldn’t consider Brady’s case important enough to hear.

“I think Brady is staring at a 2-1 defeat. It was not a good day for him.”

--Attorney Daniel L. Wallach, who attended the hearing

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