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Ben Volin | On Football

Fight over Deflategate has barely started

If Tom Brady wins, he will be allowed to play right away, but the fight is far from over.Darren Ornitz/REUTERS

Strap in, Patriots fans. We’re going to be here awhile.

Attorneys for both Tom Brady and the NFL asked US district judge Richard Berman to give a final verdict on Brady’s Deflategate lawsuit against the league by Sept. 4, six days before the start of the Patriots’ regular season. And Berman warned all parties last week that they better reach a settlement soon, because lawsuits can be tedious.

“The average life of a suit with appeal is two years, not two months,” Berman said at last week’s public settlement hearing. “I think it’s fair to say that no one here wants to wait that long.”


Except legal experts say that’s exactly where this lawsuit challenging Brady’s four-game suspension appears to be headed. Neither side has shown any willingness to budge on its position — the NFL demanding Brady serve at least one game and accept the findings of the Ted Wells Report, and Brady refusing to accept anything more than a large fine.

And even if Berman issues a ruling by Sept. 4, each side will almost certainly exhaust all of its appeal options with the US Court of Appeals for the Second Circuit, which could take months, if not years, to finally resolve.

“It’s just not over after Judge Berman,” said legal expert Michael McCann, head of the sports law program at the University of New Hampshire.

The NFL and NFL Players Association are due back in New York federal court at 10 a.m. on Wednesday, and this hearing should be different in tone from the one held last week in Berman’s courtroom. While both are termed “settlement hearings,” this one also carries the designation of “oral argument,” meaning there likely will be more back-and-forth between attorneys from both sides.

Last week, Berman grilled each side about certain facts of the case that don’t really pertain to the lawsuit — whether Brady actually received a competitive advantage from deflated footballs, whether Brady should have handed over his electronic communications, and so on. This time, Berman will have more pointed questions about the crux of the lawsuit — whether the process of investigating and punishing Brady, and reaffirming the punishment upon appeal, violated the NFL’s collective bargaining agreement.


“Last Wednesday was just a teaser,” said Daniel Wallach, a Florida-based sports attorney with Becker & Poliakoff who has been following the case closely. “It’s going to be a full-blown oral argument on the merits of the NFL’s petition to confirm the award, and the union’s motion to vacate the award.”

One minor difference this time — neither Brady nor Roger Goodell will be required to attend this hearing. Neither principal spoke at last week’s hearing, and Berman declared that only the attorneys need to attend Wednesday. However, it would not be surprising to see one or both show up, as an unspoken message to Berman about how seriously they take their cases.

Berman will continue to stress settlement with both parties, as he has done since being assigned the case three weeks ago.

But Berman now has logged several hours with both parties, mostly off the record in his chambers. He now has a better feel for the case, and McCann believes he might steer away from settlement talks and toward the merits of the case as the parties continue to dig in and refuse to reach a common ground.


And that’s how the Brady-NFL fight can turn from a six-week dispute to one that lasts several months, if not years.

Assuming the lawsuit goes to judgment on Sept. 4, whichever side loses almost certainly will file an appeal with the Second Circuit, because of the precedent at stake.

If Brady wins, he will be allowed to play right away, but the fight is far from over. The NFL almost certainly will appeal the decision, because it wants to establish precedent of being able to suspend players for not cooperating with league investigations.

And the NFL has a history of success in the Second Circuit. Former running back Maurice Clarett defeated the NFL on the district level in 2004 in his effort to enter his name into the NFL Draft, but the NFL won the appeal in the Second Circuit, and the Supreme Court refused to hear Clarett’s petition.

And there is still a lot of risk for Brady, even if he wins. Should the Second Circuit hear the appeal this fall and overturn the decision in November, for example, Brady would then have to serve the suspension at that point, as the Patriots gear up for the playoffs.

“The risk for Brady is that to beat the NFL, he has to beat them twice,” said McCann, who was on Clarett’s legal team. “So it’s definitely not over if Brady wins.”

The good news for Brady is that the appeals process is so slow it almost certainly wouldn’t be completed during the 2015 season. Former Viking Pat Williams may have given Brady a road map with the Starcaps lawsuit against the NFL. Williams received initial notice of his drug suspension in July 2008, but thanks to several lengthy appeals and injunctions, was able to play the entire 2008, 2009, and 2010 seasons, then retired from the NFL before ever serving his punishment.


“I have rarely seen an appeal on the federal level go from A to Z in less than six months,” Wallach said. “It is very unlikely that the Second Circuit would reach a decision on the merits before the end of this NFL season. The wheels of justice don’t spin that quickly.”

And the fight won’t be over if the NFL wins, either, though it certainly will increase the likelihood of Brady serving a four-game suspension. Should Berman rule in the NFL’s favor, Brady first will have to ask Berman for a motion to stay the suspension pending appeal. Assuming that fails, Brady then will have to quickly seek a preliminary injunction or temporary restraining order from the Second Circuit, which would allow him to play until his appeal is heard.

McCann said that Brady getting an injunction “is not impossible by any means, but it would be unlikely.”

“It would require another judge to conclude that Berman got it wrong,” McCann said. “And given that there’s high deference for decisions, the odds would certainly be against Brady getting an injunction.”


If Brady ends up serving the four-game suspension, the fight is all but over from his and the Patriots’ perspective. But the NFLPA will keep going with the appeal, to fight the precedent being set. Even if Brady sits four games, he could get lost wages returned and the commissioner’s powers could be weakened if the NFLPA wins on appeal.

“The court can’t unwind the suspension, but the NFLPA will have precedent, and ‘law of the shop’ going forward in future cases,” Wallach said.

All of which is to say, this fight is a long way from being over.

Ben Volin can be reached at ben.volin@globe.com. Follow him on Twitter @BenVolin.