A federal judge looking to broker a settlement between suspended Patriots quarterback Tom Brady and the NFL cast doubt Wednesday on the league's findings, questioning whether it had any direct evidence linking Brady to the deliberate underinflation of footballs used in the first half of the AFC Championship Game on Jan. 18.
Judge Richard M. Berman peppered NFL attorney Daniel Nash about whether an exhaustive report by independent investigator Ted Wells could find a direct correlation from Brady to the deflated footballs. Berman also expressed skepticism over the exact meaning of Brady having "general awareness" of the scheme, as the Wells Report concluded.
"I don't know what that means," Berman said. He also noted that the Patriots actually did better during the second half of a 45-7 rout of the Colts at Gillette Stadium.
"Turns out Mr. Brady did better with higher inflated balls than underinflated balls," Berman said. "You might say he got no competitive advantage."
Berman met separately in his lower Manhattan courtroom with Brady, NFL commissioner Roger Goodell and their attorneys before meeting in a more open forum and questioning the lead attorneys for each side.
Berman adjourned the proceedings after nearly 11/2 hours, then began meeting separately with both sides to try to find some common ground that might lead to a settlement. The NFL remains adamant that it wants Brady to serve a four-game suspension, a punishment that was upheld after a June 23 appeal. The NFL Players Association, which is representing Brady, doesn't want him to serve a suspension or admit any guilt about directing or knowing about the use of underinflated footballs.
Nash said there was "considerable evidence" that Brady knew about the deflated footballs, but he admitted there was no "smoking gun."
NFLPA attorney Jeffrey Kessler contended that the NFL had insufficient evidence to punish Brady, and that the league's collective bargaining agreement does not specify that a player can be suspended for what amounts to an equipment violation.
Kessler admitted, however, that Brady could have done a better job of cooperating with Wells' investigation by not directing his assistant to destroy the cellphone he used from November 2014 until early March. Goodell said in his decision denying Brady's appeal that the quarterback's failure to provide the phone, which was destroyed either the day of or the day before he was to meet with Wells, was part of the reason for upholding the four-game sanction.
Kessler said Brady "should have conducted himself differently with Wells," but had the phone destroyed on the advice of his agent, Don Yee.
Kessler also conceded that if the footballs were deflated deliberately before the game, that it would have been the result of Patriots equipment staffers John Jastremski and Jim McNally doing so independently of Brady. But the attorney said he does not believe that the balls were deflated.
"We do not believe there is any real evidence that there was deflation," he said.
The sides met for most of the afternoon and left the courthouse shortly after 5 p.m. Neither Brady nor Goodell spoke to reporters outside the building, and NFLPA executive director DeMaurice Smith called it a "productive'' day.
"We won't be making a formal statement other than to say we had a productive day in court,'' Smith said. "We'll get back to work on the issue.''
In his opening remarks to both sides, Berman said civil litigation often can take two years to resolve, meaning neither side stands to gain by having the matter drag on.
Gabe Feldman, director of the Tulane University Sports Law program, said Berman was trying to find "pressure points" to apply to both sides as a way of compromising. "It was pretty much standard operating procedure," said Feldman, who attended the hearing.
Feldman said if no settlement is reached, the side Berman rules against would be expected to appeal the decision to a higher court.
Berman is expected to continue discussions with both sides, but if no settlement is reached by next week, another hearing will be held Wednesday.