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'Deflategate' judge seems to be leaning toward Tom Brady's side

New England Patriots quarterback Tom Brady leaves the

New England Patriots quarterback Tom Brady leaves the Federal District Courthouse on Aug. 12, 2015 in New York. Photo Credit: Getty Images / Don Emmert

A day after failing to reach a settlement in the ongoing Deflategate controversy, lawyers representing suspended Patriots quarterback Tom Brady and the NFL presented arguments before federal judge Richard Berman about why their respective sides should prevail in the challenge to commissioner Roger Goodell's decision to uphold the penalty.

And while it can't be certain which way Berman might rule if a settlement isn't reached before his self-imposed deadline of Sept. 4 to render a decision, the judge's line of questioning made it seem he was leaning toward Brady's side.

Brady was suspended for the first four games of the regular season after a months-long report by league-pointed attorney Ted Wells concluded he was "generally aware" of the Patriots' use of deflated footballs in the first half of the AFC Championship Game against the Colts at Gillette Stadium on Jan. 18. Goodell later denied Brady's appeal to have the suspension lifted, and the NFL filed suit in the Southern District in New York to have the decision affirmed.

The NFLPA claims that Goodell was not an impartial arbitrator and that his decision was inherently flawed and should be vacated, thus lifting Brady's suspension.

Berman announced in open court on Wednesday morning that the two sides have failed to reach a settlement, and that he would hear oral arguments about the merits of the case now before him. He said if there wasn't a settlement by Aug. 31 that the two sides would again meet in his court that morning. He ordered Brady and Goodell, neither of whom was in court on Wednesday, to appear at that next hearing.

"I continue to have an open mind about the outcome," Berman said. "I'm still of the opinion that there are enough strengths and weaknesses on both sides which I believe a settlement seems like a logical and rational outcome."

Berman asked several pointed questions of NFL lead attorney Daniel Nash, even asking at one point whether Ted Wells specifically referred to the Jan. 18 game in a passage of his report that said Brady was "generally aware" of a plan to purposely deflate footballs before the AFC title game.

Berman noted that Wells didn't actually mention the date of the game in that passage. "Why didn't he say on Jan. 18, 2015?" Berman said.

Nash responded that Wells was "talking about the AFC Championship Game."

Berman cast further skepticism on the NFL's case by asking Nash why the NFLPA wasn't allowed to cross-examine NFL attorney Jeff Pash, who was listed as a co-author of the Wells report, during Brady's 10-hour hearing on June 23. Nash contended that Pash's testimony wouldn't have added anything significant to the case, but NFLPA lead attorney Jeffrey Kessler argued that he deserved the chance to see for himself whether that was the case. Wells testified at the June 23 appeal hearing that Pash had made some edits to his report, although Wells said he wasn't aware of exactly what those edits were and did not feel they fundamentally altered the conclusions of his report.

"This case fails the test for where the arbitrator is dispensing his own brand of industrial justice," Kessler said in his opening remarks to Berman. "The NFL wants the protection of arbitration. They must also take the limitations of arbitration."

Kessler said 18 arbitration awards have been vacated over the years in the Southern District court, and asked Berman to add this case to the list.

Kessler argued that Brady was not given sufficient notice that his level of cooperation might have affected his case. Brady admitted destroying the cell phone he had been using from November, 2014 through early March, 2015, but Kessler argued that the quarterback was never warned by Wells during his investigation that destroying the phone could lead to a suspension.

Kessler also said the NFL had made a "quantum leap" from Wells' investigation that concluded Brady was "generally aware" of the deflation to Goodell's conclusion in his appeal decision that the quarterback was involved in a "scheme" to have the footballs deflated.

"That quantum leap exceeded [Goodell's] authority," Kessler said.

Berman also suggested he had reservations about that apparent change in the tone of the NFL's conclusions from Goodell's appeal decision, but Nash countered that Goodell took into account the totality of evidence. That included not only Wells' report, but what Nash called Brady's destruction of important evidence.

The two attorneys also parried about the NFL's guidelines about equipment violations, with Kessler arguing that there is no mention of a suspension for a first violation and Nash countering that a fine was a minimal punishment, but that the league could impose a suspension if the violation was deemed significant enough to warrant such a penalty.

Kessler argued that there had never previously been an occasion that the NFL measured the inflation of footballs at halftime of a game, and that the NFL's poor handling of the protocol was more reason to have the suspension lifted.

Berman said he was troubled by Goodell's comparison of Brady's alleged involvement in the football deflation and subsequent destruction of his cell phone to a player who violated the league's steroids policy and then used a masking agent to try and cover it up.

"Why pick steroids?" Berman asked of Nash.

Nash explained that "both violations involve an effort to gain a competitive advantage." He then suggested that the NFLPA "can't seek to re-write the collective bargaining agreement" by having Goodell's decision overturned. "We understand that they may not want the commissioner to be the hearing officer, but the CBA says it is allowed."


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