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Judge casts critical eye on NFL’s case against Tom Brady

Next Brady, Goodell court date is Aug. 31

Attorney Jeffrey Kessler, who represents Patriots quarterback Tom Brady, arrives at court for Wednesday’s settlement hearing.AP

NEW YORK — Wednesday’s hearing in New York federal court didn’t bring the NFL and the NFL Players Association to a settlement over Tom Brady’s four-game suspension.

But Judge Richard Berman continued to put immense pressure on the NFL, poking several holes in its case and saying that Roger Goodell made a “quantum leap” from Ted Wells’s finding that Brady was “generally aware” of football tampering to Goodell stating that Brady “knew about, approved of, consented to, and provided inducements in support of” a ball-tampering scheme.

Berman again emphasized that he wants both parties to resolve the case on their own, but set the next court appearance for Aug. 31 and said he will try to issue a ruling by Sept. 4, the date requested by both sides. Brady and Goodell weren’t in attendance Wednesday, but Berman has required them to attend the Aug. 31 hearing.


Berman stated at the onset of Wednesday’s hearing that he “continues to have an open mind about the case,” and that there are “enough strengths and weaknesses on both sides that . . . settlement is a rational and logical outcome.”

According to a report by ESPN, Brady’s side is now willing to accept a small suspension for not cooperating with Wells’s investigation but won’t accept any guilt or the findings of the Wells Report. The NFL wants Brady to serve a suspension and accept the findings of the Wells Report.

The sides presented their cases in the 2-hour-15-minute hearing. The NFL’s main argument was that there is a high deference against overturning an arbitrator’s decision, and that Berman must affirm the NFL’s judgment. The NFLPA argued that Brady had no notice of his potential punishments, that past precedent states that the punishment should have been a fine and not a suspension, and that Goodell was “evidently partial” in his role as arbitrator.


But Berman certainly was more critical of the NFL’s arguments Wednesday than he was of the NFLPA’s.

During NFL attorney Daniel Nash’s oral argument, Berman continually pressed Nash about why the Wells Report doesn’t connect Brady to having knowledge of football deflation specifically in the AFC Championship game on Jan. 18. The report references to a game against the Jets last October and text messages from the past year, but nothing about the actual night of the game.

“Where does the Wells Report state that Brady knew what was going on on Jan. 18?” Berman asked. “I think it’s conspicuously missing from Mr. Wells’s findings.”

Berman then grilled Nash about Goodell’s justification for the four-game suspension, in which Goodell said that having balls deflated is similar to getting caught with steroids, since both acts are attempts at cheating.

Berman did not like the comparison.

“How are deflating footballs and not fully cooperating to the commissioner’s investigation comparable to steroid use?” Berman asked Nash. “His explanation about steroid use, in my mind, only raises more questions.”

Berman also was critical of the NFL’s decision not to make league executive Jeffrey Pash available as a witness during Brady’s appeal in front of Goodell June 23. The NFL stated in a press release in January that Pash would help lead the investigation along with Wells, and Pash was allowed to edit the Wells Report before it was published.

“Who else but Mr. Pash could’ve given testimony about his edits . . . except Mr. Pash?” Berman stated.


Nash responded that the Pash issue was a “red herring,” and that Brady wasn’t afforded the same rights in an arbitration hearing that he would be in federal court.

Berman also was critical of the NFL’s decision not to give the NFLPA before the appeal the notes attorney Lorin Reisner took during Brady’s interview with Wells in March. Reisner is Wells’s partner at the law firm Paul, Weiss and acted as the NFL’s lead counsel during Brady’s appeal.

“Wasn’t it prejudiced that the NFL had attorney notes from the Brady interview but the NFLPA didn’t?” Berman asked.

Nash accused the NFLPA of “re-arguing Brady’s appeal” and that its argument “is just an effort to rewrite the [collective bargaining] agreement.”

NFLPA attorney Jeffrey Kessler once again conceded that Brady should have been more cooperative when Wells asked him for his electronic communications in March. Brady refused to hand over his texts or e-mails, and didn’t reveal until months later that he had destroyed his phone.

Berman acknowledged that the NFL’s case against Brady for noncooperation “has some merit,” but pointed out that if Brady didn’t have any notice of his penalties — i.e. that no one in NFL history has been suspended for not cooperating with an investigation — the NFL’s accusation falls a little flat.

Nash argued that the NFL doesn’t know what was on Brady’s phone because he destroyed it.

“Is there a text from the day of the AFC Championship game?” said Nash. “Well, maybe there is. We don’t know.”


Berman told Kessler that the league’s personal conduct policy requires players to be fully cooperative, but Kessler countered that the personal conduct policy applies only to off-field legal issues, and that being “generally aware” isn’t a standard of punishment for the NFL.

“Can Mr. Brady be fined under the equipment policies?” Berman asked.

“Not for being ‘generally aware,’ ” Kessler responded.

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