The NFL and Tom Brady have stubbornly refused to back down from a fight over Brady’s four-game Deflategate suspension.
Now a federal judge will see whether he can bridge the gap.
The chief principles in the NFL Players Association’s lawsuit against the National Football League are all due in federal district court Wednesday morning in downtown New York City — Brady, NFL commissioner Roger Goodell, and NFLPA executive director DeMaurice Smith — after Judge Richard Berman scheduled a settlement conference between the parties.
And Berman has taken the unusual step of overseeing the hearings himself instead of handing them off to a magistrate, seemingly determined to steer the two parties toward a settlement instead of allowing a trial to run its course.
The sides are far apart — Goodell and the NFL upheld Brady’s four-game suspension following Brady’s appeal hearing in June, while Brady has steadfastly refused to accept any punishment that includes a suspension — but Berman is going to try to broker peace.
“Ordinarily the judge that decides the case is going to have a third party engage the mediation, so this is a little bit unusual,” said Samuel Estreicher, who teaches labor law and sports law at New York University’s school of law. “He must see some basis for an agreement, because he’s getting involved. He must think there’s some basis for resolution.”
Berman’s office confirmed that the settlement conference will begin at 11 a.m. in the judge’s courtroom, and will technically be open to the public — but probably not for long. Both the NFL and NFLPA probably will make a brief opening statement in front of everybody, but then the parties are expected to move to the judge’s chambers, where each will have an opportunity to present its case and engage in private mediation. No cameras, cellphones, or any electronic equipment will be allowed in the courtroom.
“It’s very hard to have an effective mediation in a fishbowl,” Estreicher said. “They’ll have an initial statement of position that will be public, then he’ll have separate caucuses with each party.”
A major sticking point for Brady has been his refusal to take even a one-game suspension. Brady’s side offered to take a large fine in lieu of a suspension before Goodell rendered his final decision, but the NFL never responded to the offer, instead upholding the four-game suspension.
Brady “can’t dispute that he failed to cooperate. He can’t dispute that he destroyed [his] phone knowing that it contained information that had been requested by the investigators,” NFL attorney Daniel Nash told USA Today on Friday. “He didn’t present any evidence that challenged the conclusions in the Wells Report about the Patriots employees, and the bottom line is that the commissioner made a judgment that this was conduct detrimental, and under the collective bargaining agreement, he has the authority and, in fact, the responsibility to impose discipline in that circumstance.”
If they can’t get it settled on Wednesday, the two sides will file opposition briefs on Friday, and reconvene in Berman’s courthouse again on Aug. 19. They have asked Berman to reach a judgment by Sept. 4, six days before the Patriots’ regular-season opener against the Pittsburgh Steelers.
Brady would miss meetings and a walk-through to attend Wednesday’s session, and a practice with the New Orleans Saints on the 19th. The parties can also settle out of court at any time, including before Wednesday’s session.
Each side laid out its arguments in briefs posted late Friday. The NFLPA argues that Brady received no notice of the penalties of his actions; that Goodell was inherently unfair in overseeing Brady’s appeal; that Brady’s four-game suspension violates precedent; and that if anything, Brady committed an equipment violation worthy only of a fine.
The NFL argues that Brady was afforded every right granted to players under the collective bargaining agreement; that Brady had no expectation of an independent investigation; and that Brady committed an integrity of the game violation, with Goodell holding broad powers to suspend him.
Berman has made it clear since being randomly assigned the case on July 30 that he wants the two sides to settle, and forcing Brady and Goodell to appear publicly in court is a good way to get the sides talking. (Mediation wouldn’t be very effective if the parties that can authorize a settlement aren’t present.)
“I really like the approach,” said Michael McCann, director of the sports law program at University of New Hampshire. “I don’t think leagues and players, that are billionaires and millionaires, should be able to go to court and be treated to a system of arbitration that’s in private. You’re going to go to court, you’re going to be treated like everyone else, it’s going to be in public.”
Berman has been on the bench since being appointed by Bill Clinton in 1998, and colleagues say he’s the right man to find middle ground between Brady and the NFL. A former attorney for Time Warner Cable in its early days, Berman is known as “a famous settlement judge,” Chief Judge Loretta Preska told the Associated Press last week. Berman told the New York Law Journal in 2014 that he believes the role of a judge is to “justly” and “speedily” move civil cases to their conclusion.
“This means that I pursue settlement options early and often,” Berman said. “I try to rule on motions quickly and I try not to waste time at trial.”
This is not Berman’s first time in the spotlight. In 2012, he sentenced Michael Douglas’s son, Cameron, to only five years in prison on drug charges, but later doubled the sentence to 10 years after he snuck drugs into jail. And in 2008, Berman presided over the trial of Aafia Siddiqui, the MIT- and Brandeis-educated Pakistani scientist who was sentenced to 86 years in prison for shooting at FBI agents and US soldiers at an Afghan police station.
Estreicher said Berman has a good personality, is a “straight-shooter,” and although Berman was nominated by a Democratic president, doesn’t allow political ideology to affect his decisions.
“Berman doesn’t have patience for nonsense, entitlement, or stubbornness when unwarranted, and I would not expect him to let these proceedings drag on if the parties are acting petulant,” said Jason Bonk, sports law attorney for New York law firm Cozen O’Connor. “He’s very good at getting to the core issues, and won’t tolerate inflated egos. It’s a simple case, long overdue for private resolution.”
McCann believes that Brady has a decent chance of winning his case if it goes to judgment, but ultimately expects the parties to settle, at Berman’s urging.
“I think what the judge will tell Tom Brady, in so many words: ‘Look, I get why you’re angry and why you think you’ve been wronged. But those are not the considerations that I’m going to use when I decide whether or not the NFL is right,’ ” McCann said. “So even if you believe 100 percent that you did nothing wrong, it may still be in your best interest to settle.”