NFL commissioner Roger Goodell doesn’t usually serve as the hearing officer for appeals of discipline. He didn’t hear the appeals of Greg Hardy or Adrian Peterson, and didn’t hear Josh Gordon’s appeal of his yearlong suspension, either.
“He usually only shows up for about 10 percent of them,” said one of two sources with firsthand experience with the NFL’s appeals process.
But the appeal scheduled for Tuesday morning is as big as it gets, involving the recent Super Bowl champion and the NFL’s most recognizable superstar.
There was no way Goodell was going to let anyone but himself oversee Tom Brady’s appeal of his four-game suspension, one of the strangest and most polarizing cases in NFL history.
The Patriots star quarterback will be at the league’s Park Avenue headquarters in New York to appeal his punishment over the underinflated footballs from the AFC Championship game.
And so will the major players on both sides of the appeal, including NFL Players Association outside counsel Jeffrey Kessler, who like Goodell usually deals with only the union’s most high-profile cases. If the hearing runs long, it will continue on Thursday.
“For Goodell to justify the four-game suspension, he’s going to go through a process that’s pretty rigorous,” one of the sources said. “You can’t just suspend Tom Brady for four games. He’s the face of the league.”
Tuesday’s appeal is Brady’s opportunity to prove his innocence in Deflategate, or at least convince Goodell that his four-game suspension is unjustifiably harsh given precedent and the nature of the incident.
The only problem is that Goodell, who authorized the four-game punishment, is also hearing the appeal — sitting in judgment on his own judgment, in effect. The NFL’s collective bargaining agreement allows Goodell to serve as the appeals officer, a power the commissioner has had since 1968.
The NFLPA tried to pressure Goodell to step down in this matter, but Brady’s appeal is so important that the commissioner didn’t want to hand it off.
“We have a process here. It’s long established,” Goodell said at the NFL owners’ meetings in San Francisco last month.
The good news for Brady is that Goodell appears to have an open mind about possibly reducing the punishment if Brady can present “new information” at the hearing. This could come in the form of the electronic communications that Brady declined to show Ted Wells during the Deflategate investigation — which the NFL viewed as stonewalling the investigation and led to the harshness of the punishment. Or it could come in the form of the recent report from the American Enterprise Institute, which published a lengthy rebuttal of Wells’s report and concluded that Wells’s science was faulty, and that the Patriots’ footballs were never proved to be underinflated during their AFC Championship game victory over the Colts.
“I look forward to hearing directly from Tom,” Goodell said. “If there is new information or there’s information in helping us get this right, I want to hear directly from Tom on that.”
Here’s how the appeal should unfold, according to sources:
The sides will meet in a conference room at league headquarters, with about a dozen people in the room. Joining Brady on the union’s side should be Kessler and another attorney from Kessler’s firm (Winston & Strawn); one or two NFLPA in-house attorneys (led by Tom DePaso); Brady’s agent, Don Yee; and NFLPA executive director DeMaurice Smith.
On the NFL’s side should be two in-house attorneys (usually Kevin Manara and Larry Ferazani); one or two outside attorneys (often Buck Briggs); and Adolpho Birch, the NFL’s senior vice president of labor policy and government affairs. NFL executive vice president Troy Vincent, who recommended Brady’s four-game suspension, may also be present.
Goodell, as the hearing officer, technically doesn’t represent either side. And a stenographer will also be in the room, as the CBA calls for all appeals hearings to be documented and on the record.
Goodell then leads the proceedings, which one source described as “tame and usually fairly civil.”
Goodell doesn’t wear a robe and slam a gavel, but the proceedings are somewhat similar to a court hearing.
“It’s kind of like a court of law, but it’s a private hearing, it’s confidential,” one source said. “And the jury is Goodell.”
Both sides have the opportunity to present evidence and call witnesses. The NFLPA tried to get Goodell to stand down as hearing officer by calling him as a witness, but Goodell denied that request, saying that he is not material to the issue at hand.
Goodell will ask questions during each presentation and probe the issue, but the NFL and Brady don’t really argue with each other.
“There’s really no back-and-forth at the same time,” another source said. “The appellant makes their case, then the league makes theirs, then the appellant gets to rebut it, then the league gets another chance, then both sides have closing arguments, and that’s pretty much it.”
The NFL has explained its four-game suspension as a result of the Patriots “more likely than not” intentionally deflating the footballs that night, as stated in Wells’s 243-page investigation, with Brady being “generally aware” of what was going on.
Brady’s defense, meanwhile, was outlined in a recent four-page letter from DePaso to Vincent. According to ESPN, Brady’s legal team classified the punishment as “dubious, contradictory, and mischaracterized circumstantial evidence,” and that “Brady wants the entire suspension removed and wants to be exonerated.”
Brady’s defense team will highlight several facts: That Wells never found a shred of evidence that Brady ordered employees John Jastremski or Jim McNally to deflate the footballs below legal standards; that Wells cherry-picked interviews and scientific observations to fit a predetermined conclusion; that science proves that no tampering occurred; and that Brady’s punishment is too harsh based on precedent.
Brady is set to make $8 million in 2015 ($470,588 per week during the regular season), so a four-game suspension would cost him approximately $1.88 million.
Brady’s side will argue that in the NFL’s gameday operations manual, the penalty for tampering with footballs starts at a $25,000 fine for the team (although the commissioner has the authority to increase it as he sees fit), and there is no mention of a player penalty on the books. They will note that the Panthers and Vikings were let off with a mere warning last December when both teams were found to be placing footballs near a heater during an especially cold game. They will also argue that former quarterback Brett Favre was fined only $50,000 for not cooperating with a 2010 investigation into improper text messages he allegedly sent.
The NFL, meanwhile, will stand behind Wells’s report — that the league discovered a deliberate act of cheating by the Patriots, and that Brady refused to hand over electronic communications, hindering Wells’s investigation.
The Patriots were also fined $1 million and docked first- and fourth-round draft picks.
“I have great admiration and respect for Tom Brady, but the rules have to be enforced on a uniform basis, and they apply to everybody in the league,” Goodell said. “We put the game ahead of everybody.”
In New England, many fans believe — or hope — that Brady will be exonerated and his suspension wiped out by Goodell. But that scenario seems far-fetched to most everyone in NFL circles, who expect Goodell to stand behind Wells following a four-month investigation that cost the NFL upward of $5 million.
The common belief is that if Brady cooperates in the appeal — provides the electronic communications that he refused to let Wells view — that Goodell could bump Brady’s suspension down to three or two games. One source believes Brady won’t get the suspension bumped down at all, with the thought that the four-game punishment was lenient on Brady to begin with.
Brady’s punishment might be different from those handed down to Ray Rice, Peterson, and Hardy, as the NFL changed its rules on the fly to prevent any of those players from seeing the field last season because of their domestic violence incidents. The NFL has been much more careful in the way it worded Brady’s punishment, making sure to note that it was as much about the lack of cooperation as it was the act of deflating footballs.
“He’s getting a suspension,” the source said. “The only question is, is it four or two games?”
However, when Goodell’s final decision will be rendered is still anyone’s guess. Though the appeal will last two days at most, Goodell might not announce his decision until the end of July, near the start of training camp. Hardy’s appeal of his 10-game suspension was on May 28, and nearly four weeks later Goodell still hasn’t announced a decision.
The CBA states that Goodell must make his decision “as soon as practicable,” but with no defined timeline.
“They can take forever,” one source said. “You and I can read the evidence and make a decision in a couple of days. But there’s no specific time frame. It just says ‘within a reasonable amount of time.’ ”
The CBA says that Goodell’s decision “will be binding upon the player(s), club(s), and the parties to this agreement with respect to that dispute.”
But Brady can still file a lawsuit in federal court to pursue complete exoneration. He would have to prove that the NFL’s appeals process is inherently unfair, and that the league failed to prove anything against Brady to justify a harsh punishment.
But those are arguments for another day. For now, Brady has only one person to convince — Goodell.
“I thought [Wells’s] report was very clear and comprehensive,” Goodell said. “But we’re always open, if there’s new information that can get us to a better place.”