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New round of Deflategate settlement talks go nowhere

Missing practice goes for naught

On Wednesday, look for Tom Brady to be on the football field — and not in a New York courtroom.John Tlumacki/Globe Staff/Globe Staff

NEW YORK — Tom Brady was in New York City on Tuesday, engaging in settlement talks with commissioner Roger Goodell and the NFL over the quarterback’s four-game suspension, instead of participating in a light training camp practice with Patriots teammates in Foxborough.

But the talks went so poorly, according to reports, that Brady now plans to rejoin teammates at practice Wednesday in West Virginia instead of appearing in New York federal court for a settlement hearing in front of US District Judge Richard Berman.

Attorneys for the NFL and the NFL Players Association will appear in court at 10 a.m. Wednesday for the settlement hearing, which will include oral arguments from both sides. But Berman decided last week that attendance wouldn’t be mandatory for the principals: Brady, Goodell, and NFLPA executive director DeMaurice Smith.


If Tuesday’s negotiations with Goodell had gone well, it’s possible that Brady would have remained in New York to continue working on a deal. But the sides remain far apart, and Brady instead will participate with teammates in two days of joint practices with the New Orleans Saints at the Greenbrier Resort in White Sulphur Springs, W.Va.

Brady missed Tuesday’s practice after speaking with coach Bill Belichick for approximately 10 minutes on the field after Monday’s practice. And he missed a practice last week to get ready for his first court appearance last Wednesday, at which he was required to appear but did not say anything other than stating his name.

Patriots president Jonathan Kraft said last week on a radio show that the team stands behind its quarterback in whatever decisions he makes fighting his punishment.

“Anything that Tom Brady feels is best for him is fine for us,” Kraft said.

Berman continues to push for a settlement, but the sides remain far apart regarding any sort of punishment for Brady for his alleged participation in a football-deflation scheme. The NFL wants Brady to accept at least a one-game suspension and accept the findings of the Wells Report, while Brady and the NFLPA refuse to accept any responsibility or any penalty other than a fine.


If the sides can’t settle, they have asked Berman to reach a judgment by Sept. 4, six days before the Patriots’ regular-season opener against the Pittsburgh Steelers. But both sides have appeal rights that could prolong the lawsuit for months or years.

The Wells Report found that Brady was “at least generally aware” of the ball-deflation scheme, but Goodell strengthened the language in reaffirming the four-game suspension last month after Brady’s appeal and the revelation that Brady had destroyed his cellphone. Now the NFL asserts that Brady “knew about, approved of, consented to, and provided inducements in support of” a ball-tampering scheme.

Attorneys for both sides will be given a chance Wednesday to argue their case and poke holes in the opposition, while also receiving pointed questioning from Berman. The arguments were laid out in opposition briefs that were filed Friday evening.

One of the NFL’s main arguments is that Article 46 of the collective bargaining agreement gives the commissioner broad powers to punish players for violating the integrity of the game, and that the court is bound to honor the CBA.

“The Union’s disagreement with the Commissioner’s factual findings and interpretations of the CBA and prior arbitration decisions cannot be a basis for vacating the Award,” the NFL wrote. “Under the law, his judgment cannot be disturbed.”


The NFL also will argue that Brady had plenty of “notice” of his potential punishments, and that Brady’s “obstruction” of Ted Wells’s investigation by destroying his cellphone and not handing over electronic communications was “substantial.”

The NFLPA, meanwhile, argues the suspension should be vacated based on four grounds:

■  Brady was not given proper notification of the potential punishments — particularly that being “generally aware” of a violation was grounds for a suspension.

■  The four-game suspension isn’t fair and consistent with precedent, in which players have only been fined for not cooperating with investigations.

■  Brady’s June 23 appeal hearing with Goodell as appeals officer was fundamentally unfair.

■  Goodell was “evidently partial” as the arbitrator.

NFLPA attorney Jeffrey Kessler potentially could put on a fiery show in the courtroom, based on the excitable language he wrote in the brief.

“It is more smear campaign than reasoned decision,” Kessler wrote of the Wells Report. “A propaganda piece written for public consumption, at a time when the NFL believed the transcript would be sealed from public view, to validate a multimillion-dollar ‘independent’ investigation.”

The NFLPA also will try to convince Berman that the high deference usually given to arbitrators shouldn’t apply in this case.

“This is not the typical labor arbitration,” the union wrote. “As this Court recently held, arbitration awards are not inviolate, and they must be vacated when they defy the essence of the parties’ agreement.”


Ben Volin can be reached at Follow him on Twitter @BenVolin.