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NFL’s appeal of Tom Brady decision to be heard Thursday

New England Patriots quarterback Tom Brady arrives

New England Patriots quarterback Tom Brady arrives at federal court in Manhattan on Aug. 12, 2015, to appeal NFL commissioner Roger Goodell's decision to suspend him for four games over the Deflategate scandal. Credit: Getty Images / Andrew Burton

More than a year after the NFL began an investigation into whether the Patriots purposely used underinflated footballs in the AFC Championship Game, the NFL’s appeal over a judge’s decision to overturn Tom Brady’s four-game suspension will be heard Thursday in federal court.

Attorneys for the league and for Brady are set to meet before a three-judge panel at 2 p.m. in the Second Circuit U.S. Court of Appeals in New York. Neither Brady nor commissioner Roger Goodell, who suspended Brady for his alleged role in what Goodell called a “scheme,” is expected in court.

Goodell announced last May that he was suspending Brady for the season’s first four games, but the quarterback successfully appealed the suspension in U.S. District Court. Judge Richard Berman vacated the penalty after ruling that the league didn’t give adequate notice to Brady during its investigation that he would be subject to a suspension.

Berman also ruled that Brady should have had the opportunity to speak with one of the league’s investigators, lead counsel Jeffrey Pash, and that Brady was unfairly denied access to investigative files, including witness interview notes.

The NFL appointed attorney Ted Wells to investigate the use of deflated footballs, and his 243-page report, released more than four months after the incident, concluded it was “more probable than not” that Patriots equipment staffers deliberately took air out of the footballs before the Jan. 18 game against the Colts. The report also concluded that Brady was “generally aware” of the plan.

Wells also reported that Brady had destroyed a cellphone he used from November 2014 through early March 2015, preventing Wells from examining text messages and emails that may have been related to the case. Goodell cited the cellphone destruction as a major factor in his decision to suspend Brady.

The appeal of Berman’s ruling will be heard by chief judges Robert A. Katzmann, Barrington D. Parker and Denny Chin.

It is uncertain whether the NFL would reinstitute the suspension for the 2016 season if its appeal is successful. Goodell said this was more an issue of the league’s right to handle disciplinary matters.

“I’ve said it publicly many times, that is not an individual player issue,” Goodell said Feb. 5. “This is about the rights we negotiated in our collective bargaining agreement. We think they are very clear, we think they are important to the league going forward and we disagree with the District Judge’s decision. We are appealing that, which is part of the legal process. I am not going to speculate on what we are going to do. Depending on the outcome, we’ll let the outcome be dictated by the appeals court. When it happens, we’ll deal with it then.”

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