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Judge puts pressure on NFL and Brady

We didn’t need a federal judge to inform us that Tom Brady’s four-game suspension, along with the drawn-out Deflategate morass, is ludicrous. But US District Judge Richard Berman did on Wednesday.

Berman seemed to be both as unamused and aggravated by the absurdity of the Deflategate battle ground shifting to his New York court room, with Brady and NFL commissioner Roger Goodell before him, as anyone. Presiding over the first of two scheduled status/settlement conferences in the lawsuit between the NFL and NFL Players Association regarding Brady’s discipline, Berman was the only one who came out looking good.

Wednesday was step one in what promises to be an intricate dance between Brady and the NFLPA and the NFL to find a face-saving solution. Berman is choreographing that dance.


That’s not what the more militant members of the Foxborough Faithful and Brady Backers want to hear. They want to hear that Berman’s pointed questioning of NFL attorney Daniel Nash and excoriation of the NFL’s evidence, or lack thereof, are a signal that Berman will invalidate Goodell’s decision to uphold Brady’s flimsy four-game ban and right all of the NFL’s wrongs.

The Deflategate case is like the courtroom sketch of Brady that became a Photoshopped meme. Both sides are drawing a picture that doesn’t resemble reality. They’re entrenched, jockeying over two completely disparate sets of facts that defy reconciliation. Berman wants to show both parties the big picture in focus.

His goal the first time he had both sides in his court room appeared to be to expose to them the flaws in their arguments, ones they have become tone deaf to from the opposition.

He publicly poked holes in both sides’ arguments, although the NFL left US District Court in New York on Wednesday with more air taken out of its arguments.


Berman pointed out there was no direct evidence linking Brady to the league’s assertion that Patriots low-level staffers John Jastremski and Jim McNally deflated footballs prior to the AFC Championship game in January. He swatted aside the NFL’s contention in its legal brief that Brady approved of and consented to a scheme to tamper with balls.

New York Daily News court reporter Stephen Brown tweeted Berman telling Nash, “I’m trying to figure out what is the direct evidence that implicates Mr. Brady in that deflation?” That sounded like a rhetorical question.

Berman also questioned the “at least generally aware” standard used in the Wells Report and undercut Goodell’s appeal-ruling rationale that ball deflation was tantamount to performance-enhancing drug use.

But Berman posed some awkward questions for Brady’s attorney, Jeffrey Kessler, as well. The judge stated it looks like McNally and Jastremski deflated the balls — anathema to Patriotologists — and then asked why they would deflate without Brady’s consent.

Kessler maintained that his side does not believe any deflation occurred, but opened the door to the possibility of tampering without Brady’s knowledge or consent.

“It is conceivable that McNally thought it would be something that is good for his quarterback. But it is a long leap from there to suggest Mr. Brady ordered it,” Kessler told Berman.

That was different from Brady’s Facebook declaration that “neither I, nor any equipment person, did anything of which we have been accused.”

Kessler also pinned Brady’s lack of electronic communication cooperation with Ted Wells on Brady’s agent, Don Yee, and acknowledged Brady should have behaved differently.


So, for those who have stubbornly argued Brady acted properly in not turning over any communications to Wells and Co., his lawyer disagrees.

The real question is whether Wednesday brought us any closer to a settlement. Doubtful.

The NFL’s stance before Wednesday was that Brady would have to accept the findings of the flawed Wells Report and guilt, according to ESPN. Brady’s side has maintained a fine without an admittance of guilt is all he would accept.

The NFL remains convinced that Brady will eventually cave. It couldn’t have sat well with TB12 that he was in a Manhattan court room one day before the Patriots open the preseason, whether the plan is to play him Thursday night or not.

The plan certainly will be to play him in the second preseason game on Aug. 22 in New Orleans. Prior to that game, the two teams are scheduled for joint practices in West Virginia, where the Saints are holding training camp. Brady would have to miss one of those practices to attend the next settlement conference/status update conference on Aug. 19.

His Deflategate defense is starting to interfere with his preparation for the season, and it is looming as a distraction for the entire team. That’s not Brady’s style.

However, the NFL is arrogantly gambling because there is no telling how much damage a ruling against it could do.

This case is bigger than Brady for the NFL. If it plays a game of brinksmanship and relies on Berman to uphold Brady’s suspension solely on labor law, ignoring the league’s lack of fundamental fairness, it could end up with a ruling that limits Goodell’s powers and re-writes the CBA.


Is that really worth it for something they can sort of, maybe, kind of show happened? It seems like the wrong hill to have the commissioner’s absolute authority on disciplinary matters perish.

The initial sense was that Goodell might have shored up support among ownership by dropping the hammer on Brady and the Patriots. But if support for this pursuit of deflated discipline, or Goodell himself, wanes then the commissioner and trusted advisers Jeff Pash and Gregg Levy could be forced to capitulate.

Egos, legacies, politics, all are impediments to a settlement.

Berman is trying to break through all of that to craft a denouement for this regrettable saga. He’s not taking sides. He’s trying to bridge them.

Christopher L. Gasper is a Globe columnist. He can be reached at cgasper@globe.com. Follow him on Twitter @cgasper.