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For NFL and NFLPA, stakes are high in Tom Brady’s appeal

In many ways, the appeal is a potential knockout punch for the union.

Tom Brady’s appeal is the latest (and most high-profile) battle between the league and players’ union.Shannon Stapleton/REUTERS

On a micro level, the Tom Brady appeal is about one thing — exoneration for the Patriots’ star quarterback. That is Brady’s only goal.

But for the two other parties involved, the NFL and the NFL Players Association, Brady’s appeal of his four-game Deflategate suspension represents so much more.

“The PA’s interest is in part Tom Brady, but it’s really bigger than Tom Brady,” said Michael McCann, sports law expert at the University of New Hampshire. “This is a valuable opportunity to create new precedent that would limit the powers of the commissioner. By fighting for Tom Brady, they’re fighting more for all players going forward.”


Sports leagues and their unions are always going to have their differences, but the relationship between the NFL and the NFLPA under commissioner Roger Goodell and NFLPA executive director DeMaurice Smith has been especially frosty since Smith took over in 2009.

Brady’s appeal is the latest (and most high-profile) battle, and once again, the sides can’t help but engage in petty squabbling. One side tells ESPN’s Adam Schefter that Brady’s testimony was glowing, another side tells Pro Football Talk’s Mike Florio that the NFL was less than impressed. One side told me they aren’t allowed to speak about the contents of Tuesday’s appeal because of a strict confidentiality agreement, the other side tells me that no official confidentiality agreement exists.

Basically, the NFL and NFLPA can barely agree what day of the week it is. Of course, there was the nasty labor dispute of 2011, with barbs thrown very publicly from each side. And the league and union have been in constant battle in the last year over the abuse of Goodell’s disciplinary powers in the Ray Rice, Adrian Peterson, and Greg Hardy cases.

“It’s very hostile,” McCann said. “I think the relationship between the NFLPA and the NFL is the worst of the relationships between the professional leagues and their respective players associations, and I think that has been an important factor in the Brady dispute, where there’s great mistrust.”


But with the Brady appeal, the NFL and NFLPA have much more at stake than just a four-game suspension. It’s really about the fate of Article 46 of the collective bargaining agreement, the highly contentious article that gives Goodell full authority to serve as the hearing officer for appeals of player discipline. Or, as the union calls it, license to be “judge, jury, and executioner.”

The NFL commissioner has had this power since the first CBA in 1968, and Goodell is grasping it tightly. His power was weakened in the past year when a neutral arbitrator overturned Rice’s indefinite suspension, and a federal court vacated Peterson’s suspension.

In many ways, Brady’s appeal is a potential knockout punch for the union.

If Brady can go to court and get his suspension vacated — that is, if he can prove that the NFL’s appeals process is inherently unfair — it could bring major reform to the NFL’s justice system and set precedent that severely restricts Goodell’s powers.

Of course, what amounts to essentially rewriting part of the CBA, which is signed through the spring of 2021, is likely a steep hill for Brady and the NFLPA to climb.

“I am sure the NFLPA would like that, to gain through litigation what they could not gain through bargaining,” said ESPN’s Andrew Brandt, a former player agent and Packers vice president. “But the chances seem slim. It is very rare for a judge to overrule the decision of an arbitrator.”


Still, there’s an interesting dynamic at play within the Brady camp. The NFLPA almost certainly wants Brady to go to court and to attack the punishment with the ferocity of a rabid dog.

But going to court carries risk of Brady exposing himself and the Patriots to the discovery process, which could put a famously secretive organization in the open, not to mention the potential that Brady loses in court and has to serve his suspension late in the 2015 season, when the Patriots are trying to clinch a playoff spot.

Brady wants exoneration, but what if he decides that taking a reduced one- or two-game suspension is ultimately better for the team and the best way to put the Deflategate mess behind him?

The NFLPA has not shown any evidence of not acting in Brady’s best interests, but the union’s obligation is always to think big picture.

“For the most part there are mutual interests between the PA and Tom Brady, but Tom Brady and his attorneys are focused on Tom Brady first and only, whereas the PA is focused primarily on precedent and impact on players going forward,” McCann said. “By and large that should mean they have the same goals, but they’re not quite identical.”

At this point, Brady’s appeal with the NFL is really just a negotiation. Did Brady cooperate this time and show the materials he declined to show Ted Wells the first time?


Is he willing to not go to court if the NFL publicly exonerates him but keeps a one- or two-game suspension?

Or is it all or nothing for Brady, who has done little to tip his hand?

“We can’t overlook the possibility of a deal being worked out between the NFL and NFLPA that would end any litigation and finally put this thing to bed,” said Florio, a former litigator for 18 years. “Part of being a litigator is knowing when to strike a deal. The best negotiation in this setting is a deal that each side doesn’t like but doesn’t hate, and it gives them certainty and allows them to move forward.”


Model agrees with Exponent

Meet Mike DeSarno. He’s a 49-year-old biostatistician at the University of Vermont, which means he runs physical analyses on data for studies with the school’s college of medicine.

DeSarno is originally from the Hartford area and is a lifelong Patriots fan. He watches every game, has Patriots tattoos, and attended the 2008 Patriots-Giants Super Bowl in Arizona. He wanted nothing more than the Patriots to win their fourth Super Bowl title this year, and to be exonerated in Deflategate.

So you can imagine DeSarno’s disappointment when he dug into the report by the American Enterprise Institute last week — the one that has been oft-cited by Patriots fans as the definitive debunking of the Wells Report — and discovered a fatal flaw.


The AEI scientists wrote that Ted Wells and Exponent used “an unorthodox statistical procedure at odds with the methodology the report describes.” On a whim, DeSarno decided to check AEI’s work. He plugged the football PSI data into a standard statistical analysis method — a mixed model, repeated measures analysis of variance, or ANOVA.

On his first try, DeSarno replicated Exponent’s results exactly.

“I totally expected to see that I couldn’t replicate the Wells Report, either,” DeSarno said. “But I was kind of surprised that once I ran my standard analysis method, it matched Wells exactly.

“The first model I tried, based on the usual model I use for this data, worked immediately. So I don’t know why [AEI] didn’t use that model.”

Now, just because DeSarno replicated Exponent’s results does not mean that the conclusions of the Wells Report are accurate.

DeSarno pointed out that the data set is incomplete and flawed — what we’ve been saying for four months about referee Walt Anderson not recording the pregame data and all of the different gauge-switching scenarios — and that Wells cherry-picked results to fit the “Patriots are guilty” conclusion.

“I still don’t place any faith in [Wells’s] conclusions,” DeSarno said. “All I can tell you that the analysis method Wells used is absolutely correct, and the analysis method AEI used is incorrect.”

The point here is not to dump on the AEI scientists. It’s to point out that Patriots fans need a reality check when it comes to Deflategate.

The Wells Report was attacked viciously and thoroughly in New England, home to some of the most brilliant scientific and legal minds in the world, as well as the most rabid and passionate fans in the country.

It’s millions of Patriots fans vs. one Ted Wells, and Wells has gotten clobbered.

But when anything pro-Patriots is released — such as the AEI report or the Patriots’ Context Report — every word is taken as gospel. There’s been very little critical analysis of their work, and anything that doesn’t fit the “Patriots are innocent” story line is ignored.

Last week, DeSarno forwarded me an e-mail he had sent AEI wondering why it didn’t use his analysis model, and I published the e-mail on Twitter. The response in New England? Crickets from radio hosts, bloggers, other reporters, and the Patriots. Same from AEI, which never responded to DeSarno.

No one seemed to care that a reputable statistician was able to debunk the AEI report and lend a little credence to the Wells Report.

This doesn’t change the overarching premise, that Wells likely had a predetermined conclusion of guilt, that a good case can be made that the footballs weren’t underinflated, and that the penalties levied on Tom Brady (and to an extent the Patriots) were far too harsh.

Just realize that the pro-Patriots analysis has hardly been scrutinized with the same ferocity that the Wells Report has been attacked.


Gurley came out a winner in deal

Todd Gurley’s knee injury is considered a “non-football injury.”Michael Thomas/Associated Press

Last week, we wrote about the unique contract clause in the contract of Rams first-round pick Todd Gurley, who is coming off a torn ACL suffered in college. We wrote that Gurley only got the first two years of his four-year, $13.8 million deal fully guaranteed, a sign that the Rams protected themselves.

But an NFLPA source explained that the opposite is true — Gurley and his agent, Ari Nissim, are the ones who got protection from the team.

In NFL parlance, Gurley’s knee injury is considered a “non-football injury,” since it occurred outside the NFL realm. While all first-round contracts and many veteran contracts are guaranteed for skill, cap, and injury, very few (if any) contain guarantees for non-football injuries. The fact that Gurley was able to get two years guaranteed for a non-football injury was a victory for the player and shows how much the Rams value Gurley, the No. 10 overall pick.

“No player in the league, from [Peyton] Manning to [Jadeveon] Clowney to [Jameis] Winston, has protection against getting cut [and not paid/and guarantees not honored] due to this type of situation,” the source said. “The fact that Gurley’s agent got him two years protected for a non-football injury is better than every other player in the first round, and the league in general.”

Some things to consider

The NFL held its annual Rookie Symposium in Aurora, Ohio, last week, a mandatory event for all draft picks that serves as a de facto orientation to NFL life, with lessons taught about the league’s drug policies, the new post-Ray Rice personal conduct policy, the players’ new financial responsibilities, and other important life lessons.

Among the speakers: Lisa Friel, the former New York City sex crimes prosecutor who helped the league craft its new conduct policy; Cris Carter, the Hall of Fame wide receiver whose career was almost derailed by a cocaine addiction; former wide receiver Donte Stallworth, whose life changed after pleading guilty to DUI manslaughter; Jets receiver Brandon Marshall, who has had several arrests in his career involving drunk driving and domestic incidents; Ravens running back Justin Forsett, who didn’t crack 1,000 yards or get more than 118 carries in a year until his seventh NFL season and fifth team; and former cornerback Phillip Buchanon, who warned the players of the pitfalls that come with instant fame and riches.

“Budget. That’s one message that has already stuck with me . . . how to spend our money wisely and not become one of those players that are broke after a couple years playing in the NFL,” Bengals fifth-round tight end C.J. Uzomah wrote in his blog.

Extra points

Head of officiating Dean Blandino said on SiriusXM late last week that the NFL is close to finalizing new pregame football-handling procedures in the wake of Deflategate. “We’re still working on it, getting close to putting those together and being able to distribute that and communicate that to the clubs. Not final yet but we’re getting close,” he said . . . The NFL began issuing proposal requests to multiple stadiums in Southern California with the intent of securing a temporary home for at least one team for the 2016 season, according to the Los Angeles Times. The Coliseum and Rose Bowl are among the venues being considered . . . The 21,000 NFL retirees seeking payouts from their $1 billion concussion settlement with the league might have to wait until next year to get their money. Approximately 90 former players are still appealing the final settlement that was approved by a federal judge in April, preventing players such as former Patriots fullback Kevin Turner, battling Lou Gehrig’s disease, from collecting money to help with medical bills. “There’s a lot of players in really bad shape that are probably not going to see [the money] because of the delays,” Ray Turner, Kevin’s father, told the Associated Press . . . Things we learned about the Patriots’ summer vacation plans via social media: Julian Edelman appears to be having a blast in Israel; Dont’a Hightower took Sealver Siliga to a bluegrass concert in the Smoky Mountains of Tennessee; Brandon LaFell caught two giant marlins while deep-sea fishing in Cabo San Lucas; Rob Ninkovich likes drinking Michelob Ultras on Rosemary Beach in the Florida panhandle; Nate Ebner’s date to the Patriots’ Super Bowl ring ceremony was his mom; the McCourty twins are holding their third annual football camp today in Nyack, N.Y.; and Bill Belichick and Linda Holliday are touring the Greek Islands . . . Speaking of Belichick, he made an undisclosed donation to Hiram College in Northeast Ohio recently, with his gift going to the Coach Steve Belichick Olympic Training Center in the school’s gym, the Jeannette Munn Belichick ’42 Reading Room in the school’s library, and the Jeannette Munn Belichick ’42 Endowed Fund to provide more support for the library and study abroad programs. Belichick’s parents met at Hiram in the 1940s.

Shattered dream

With the June 12 release of offensive lineman Evan Mathis, the Philadelphia Eagles have nearly completed the dismantling of the “dream team” put together for the 2011 season. Only two of the 27 players acquired through free agency, trades, and the draft now remain with the team. Here’s a look at where each of the players are now:

Compiled by Michael Grossi

Ben Volin can be reached at Follow him on Twitter @BenVolin. Material from interviews, wire services, other beat writers, and league and team sources was used in this report.