NEW YORK — Tom Brady appeared to get the upper hand in his seven-month dispute with the NFL on Wednesday when a federal judge peppered a lawyer for the league with questions at a hearing. ADVERTISING NEW YORK — Tom
NEW YORK — Tom Brady appeared to get the upper hand in his seven-month dispute with the NFL on Wednesday when a federal judge peppered a lawyer for the league with questions at a hearing.
Brady and Commissioner Roger Goodell were not in court when their lawyers made oral arguments to Judge Richard M. Berman of U.S. District Court in Manhattan. The hourlong presentations echoed their recent filings in the case, which was brought by the NFL to certify its decision to uphold its four-game suspension of Brady in connection with the deflation of footballs used in last season’s AFC championship game.
Berman said he hoped to make a ruling by Sept. 4, about a week before the season opener, when Brady’s suspension is to begin. But Berman said that he had not made up his mind about the matter and that there was still plenty of room for compromise.
“I’m still of the view there are enough strengths and weaknesses on both sides that lead me to believe a settlement is the logical and rational outcome,” he said.
But the fact that the two sides were still arguing their case in court showed that they were no closer to reaching a deal to reduce or eliminate Brady’s four-game suspension, raising the possibility that Berman will have to rule on the matter. If he vacates the NFL’s ruling, Brady will be free to play in the season opener Sept. 10 against the Pittsburgh Steelers. But if an appeals court overturns that decision, Brady could end up serving his suspension later in the season.
Brady continues to insist that he did nothing wrong. Jeffrey Kessler, a lawyer for the NFL Players Association, which is defending Brady, said Wednesday that Goodell, who heard Brady’s appeal to the league, was a compromised arbitrator because he incorrectly evaluated new evidence when deciding to uphold Brady’s ban. Kessler noted that Goodell’s deputy, Troy Vincent, had suspended Brady based on the findings of a report compiled by Theodore V. Wells Jr., a lawyer the league hired to investigate the matter.
But when Goodell upheld the suspension, he based his decision not only on the evidence in the Wells report but also on what he perceived to be Brady’s unwillingness to cooperate with Wells’ investigation.
Kessler said Brady had never been told by Wells that he could be suspended for not cooperating with Wells’ investigation, including a refusal to turn over cellphone records. No NFL player, Kessler added, has ever been suspended for being “generally aware” of a plan to deflate game balls or any other offense. Under that theory, players could be suspended for being generally aware that a teammate was taking steroids, he said.
“There is nothing in the evidence that Brady was told he could be penalized for being ‘generally aware’” of a plan to deflate the balls, Kessler said.
Though Berman stopped Kessler several times to ask him to clarify or elaborate, he was far more aggressive in his questioning of Daniel L. Nash, a lawyer for the league. Nash said that contrary to Kessler’s assertions, the league gave Brady every chance to defend himself during the process.
But Berman repeatedly interrupted Nash to ask, among other things, whether the Wells report and, by extension, the league’s decision to suspend Brady were based on events that occurred on the day of the AFC championship game, or before and after as well.
References to Brady’s behavior on the day of the game were “conspicuously absent” from the Wells report, Berman said.
In deciding whether to certify or vacate Goodell’s decision to uphold Brady’s suspension, Berman must decide whether the commissioner acted capriciously and arbitrarily.
To that point, the judge asked Nash how much of Brady’s suspension was based on his role in the supposed scheme to deflate the game balls and how much was based on his reluctance to cooperate with investigators.
“Someone’s got to make that call, and it’s clear under the collective bargaining agreement that the commissioner” has that right, Nash said, without specifically answering Berman’s question.
After the two-hour hearing, lawyers for both sides met privately with Berman, who has urged the league and the players’ union to settle their differences rather than force him to rule in the case.
In asking Berman to certify Goodell’s authority over Brady’s suspension, the NFL wants to validate that the commissioner has broad authority to discipline players for damaging the league’s integrity.
In coming to Brady’s defense, the union has pushed back at what it sees as Goodell’s aggressive interpretation of his powers under the collective bargaining agreement.
Brady has denied that he had anything to do with deflating game balls. He has also said that contrary to the league’s contention, he has fully cooperated with investigators.
The NFL may hope that as it continues to fight the union in court, Brady will feel compelled to agree to a deal to avoid serving some or all of his suspension, which would begin Sept. 10.
Unless a settlement is reached, the two sides will be back in court on Aug. 31, with Brady and Goodell required to attend.
