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Deflategate case now in judge’s hands

Patriots quarterback Tom Brady left federal court in New York on Monday.Peter Foley/EPA

NEW YORK — The National Football League and its players association failed to negotiate a last-minute settlement in Tom Brady's appeal of his four-game suspension Monday, and US District Judge Richard Berman announced he would issue a ruling as early as Tuesday.

"The parties tried quite hard,'' said Berman, who didn't ask either side questions in the 10-minute session. "I have no qualms with everyone's dedication and willingness in that regard. Sometimes it just doesn't happen."

Berman will probably either uphold the New England quarterback's four-game ban for his role in allegedly having footballs underinflated before January's AFC Championship game or will completely vacate it. In a less likely scenario, the judge could force the sides to redo the Patriots quarterback's appeal from June 23, in which NFL Commissioner Roger Goodell served as arbitrator.


Berman said he will issue a ruling by Friday, but the lack of a settlement increases the likelihood that this saga is far from over. Both sides have appeal rights, and the loser will almost certainly use them, which would keep the battle going for months, if not years.

The issue is whether the NFL violated the collective bargaining agreement during Brady's appeal in front of Goodell at the NFL offices. In two previous hearings, Berman appeared to support the arguments of Brady and the players union. The judge pointed out several flaws the NFL made in the process, while going relatively easy on the union and Brady and at times making their case for them.

If Berman rules in Brady's favor, he will be eligible to play immediately in the Patriots' regular-season games. Any NFL appeal could take months.

NFL Commissioner Roger Goodell also attended Monday’s court hearing.Mary Altaffer/Associated Press

If the NFL is victorious, Brady can file for an injunction — trying first from Berman, then from the Second Circuit Court of Appeals. Obtaining an injunction is far from certain, but it would allow Brady to play until his appeal is heard, which probably wouldn't be until after the 2015 season.


If Brady isn't granted the injunction, he will be forced to sit out the Patriots' first four games. The Patriots open their season Sept. 10 against the Pittsburgh Steelers in a nationally televised game.

The NFL and the union brought in extra help Monday.

Joining the NFL team was New York Giants owner John Mara, who previously stated he did not want to get involved in these negotiations because of a conflict of interest in representing a rival team, but he was required to attend by Berman. Mara is chairman of the NFL's executive committee, which oversees labor matters.

The union team included former NFL kicker Jay Feely, a member of its executive committee who is also a longtime friend of Brady's, dating to their days together at the University of Michigan. The players association also had chief operating officer Ira Fishman on hand.

Berman was highly critical of the NFL during the first two hearings last month, questioning why it didn't make its general counsel, Jeffrey Pash, who co-led its investigation into the case with Ted Wells and edited the Wells Report, available to testify at Brady's appeal.

Berman also was critical of Goodell's comparison of ball deflation to steroid use, wondered why the NFL didn't share certain attorney notes with the union before the hearing, and pointed out that Wells never found proof linking Brady to a ball-deflation scheme before the title game.


But it's possible that Berman was harsher against the NFL because he was trying to persuade it to move off its position and toward a settlement.

Berman still could rule in the NFL's favor, out of deference to a collectively bargained arbitration process. One of the NFL's central arguments is that it and the union agreed in bargaining to allow Goodell to hear appeals and have broad disciplinary powers and that the court is bound to uphold Goodell's decision.

The NFL also argues that Brady was afforded every right due him during his June 23 appeal and that the decision not to hand over attorney notes or allow Pash to testify was not material to Goodell's deciding to uphold the suspension.

There is a remote chance that Berman could ask Goodell to step down as arbitrator and appoint someone with more neutrality — such as former NFL commissioner Paul Tagliabue — to hear a new Brady appeal. Berman also could force the NFL to make Pash available to testify at this hearing and force Jim McNally and John Jastremski — the two Patriots employees allegedly in charge of deflating the footballs — to testify as well.

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