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Tom Brady is in the lead in court, but NFL holds the trump card

Article 46 of the CBA and the high deference afforded to arbitration awards could work against Brady.

Tom Brady and his legal team appear to be making all the right moves in this lawsuit.May Altaffer/Associated Press

Tom Brady doesn't need one of his magical fourth-quarter comebacks this time.

Brady and his legal team appear to be making all the right moves in their lawsuit against the NFL contesting the Patriots quarterback's four-game suspension.

After two public hearings in front of Judge Richard Berman, Brady and the NFL Players Association are leading, 50-0, at halftime, running circles around their opponents. If this were a football game, Brady would be removed soon, to protect him from injury.

But this is federal court, and no commentator is willing to call this game yet. Despite the union's seemingly insurmountable lead, the NFL holds the ultimate secret weapon, a 70-point touchdown that can render the first 58 minutes of the game completely meaningless.


Despite all of the good points being made by Jeffrey Kessler and the rest of Brady's legal team, and the intense grilling Berman is giving league attorney Daniel Nash, the NFL just might hold the trump card:

Article 46 of the NFL's collective bargaining agreement, and the high deference afforded to arbitration awards.

What does that mean? That only under extreme circumstances should a federal court intervene with an arbitrator's decision, even if the arbitrator is someone as clearly biased as NFL commissioner Roger Goodell was in hearing Brady's appeal in June.

It's basically the NFL's only legitimate argument in this lawsuit. But it might be enough.

Article 46 gives Goodell the power to hear appeals. The NFL interprets that to mean that whatever Goodell rules is final, case closed.

"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 in its brief Aug. 14, citing the Major League Baseball Players Association's Supreme Court victory over Steve Garvey in 2001.


We'll see if Berman agrees. Last week in court, Kessler submitted a list of 18 arbitrations that were overturned by judges in the Southern District of New York and the Second Circuit, the same court system that is hearing Brady's lawsuit.

It's an impressive list that attempts to give Berman the confidence to overturn the NFL's decision. It also is a telling list: The 18 cases date to 1970, and only two arbitrations have been overturned since the turn of the century (in 2003 and 2007). Only five have been overturned in the last 25 years.

"Just so you know, federal judges always have a little difficult [time] with deferring," Berman told Kessler in court Wednesday, "but that is definitely the legal standard."

At face value, Berman appears to side heavily with Brady. But when it comes time to make a decision, will Berman be the first judge in eight years to overturn an arbitration in that courthouse?

"Judges' questions are not always predictive of how they'll rule," said Michael McCann, a sports law expert at the University of New Hampshire and for Sports Illustrated. "It is not unusual for attorneys to complain that they thought they would win a case based on the judge's apparent sentiments during oral arguments, only to unexpectedly lose when the written order was published."

Berman is still emphasizing, above all else, that both parties stop wasting everyone's time and money and put this silly matter behind them with a settlement.

It is why many observers believe Berman is being harsher on the NFL — to scare it into negotiating. While Brady might be willing to accept a one-game suspension based solely on his noncooperation with the investigation, the NFL appears reluctant to budge off its long list of demands, which include Brady accepting the language and the findings of the Ted Wells Report as well as taking at least a one-game suspension.


Berman certainly isn't buying much of what the NFL is selling. He grilled Nash over the lack of a direct connection in the Wells Report between Brady and deflated footballs on Jan. 18, the night of the AFC Championship game. He said Roger Goodell took a "quantum leap" from saying Brady was "generally aware" to being directly involved in a scheme.

Berman flat-out rejected the comparison Goodell made between deflating footballs and steroid use. He couldn't understand why the NFL didn't let Jeffrey Pash, who helped run the investigation and edit the Wells Report, give witness testimony at Brady's appeal, and he didn't understand why Lorin Reisner, who served as NFL counsel in Brady's appeal, didn't share some of his notes with Brady's side.

The Pash thing might be the most damning piece of evidence in Brady's favor. Berman used words such as "prejudice" and "vacated" as more than a veiled threat to Nash and the NFL.

"Some arbitration awards have been, I believe, vacated precisely because an arbitrator made a finding that testimony would be cumulative and didn't specify in what respects it would be cumulative," Berman warned Nash."One side had the notes and he was able to examine with them, and the other side didn't. Isn't that prejudice?"


Wells said at the June 23 appeal that Pash's testimony wasn't necessary because he didn't make any substantive edits to the Wells Report.

"I didn't find that answer very enlightening," Berman said. "Even though this is not Federal District Court . . . there are some basic procedures of fairness that have to be followed. And I'm just trying to figure out what the big objection was in calling Mr. Pash."

Meanwhile, Berman seemed at times to be making Kessler's case for him. Kessler made a point that Wells's finding of Brady being "generally aware" should not have equaled a four-game suspension, but said he wanted to move on to another point because he had limited time.

Berman stopped Kessler in his tracks.

"This is an important issue," Berman said. "I may be making more of this than appropriate, but this says release from Patriots' game balls. It does not say, which is the only finding that we're considering, is what happened in the AFC game. Am I making too much of the absence?"

"No, your Honor," Kessler responded. "I think that is an outstanding observation."

But, despite the blowout on the scoreboard, we go back to the NFL's trump card: Article 46.

Anyone who says they know which way Berman will rule is just blowing smoke.

"Honestly, you shouldn't believe anyone," McCann said. "None of us know what the judge will do. His clerks might not even know."


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