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NFL files opening brief in appeal of Deflategate ruling

Roger Goodell said the decision to appeal the Deflategate ruling is about protecting the NFL’s rights as governed by the league’s collective bargaining agreement. Julie Jacobson/AP

Tom Brady’s victory over the NFL in federal court seems like a distant memory with the Patriots at 6-0 and Brady playing like an MVP candidate.

But the Deflategate drama continued on Monday, with the NFL officially filing its opening brief in the US Court of Appeals for the Second Circuit and introducing a beefed-up legal team that seeks to overturn Judge Richard Berman’s decision to vacate Brady’s four-game suspension.

In its 59-page brief filed Monday, the NFL attacked Berman’s ruling from early September, stating that it “vastly exceeded the narrow bounds of judicial review” and that “although Brady refused to cooperate fully with the (Ted) Wells investigation, significant evidence linked him to the deflation scheme.”


And the NFL has added Paul Clement, Erin Murphy, and Michael McGinley of the Washington, D.C. law firm Bancroft PLLC to its legal team. Clement is a former US Solicitor General who argued the NFL’s case against the NFL Players Association during the 2011 NFL lockout.

Monday’s filing was the first step in the league’s appeal of Berman’s decision. Under an expedited schedule agreed to by the NFL and NFLPA, the NFLPA’s response brief is due on Dec. 7, the NFL’s reply brief on Dec. 21, oral arguments would likely take place in January, and a panel of three judges will likely make a decision sometime after the Super Bowl in February. The NFL needs two of three judges to agree with its position to overturn the original decision.

At the quarterly NFL owners meetings earlier this month, Goodell said the appeal is about protecting the NFL’s rights as governed by the league’s collective bargaining agreement.

“This isn’t about any individual player or any individual incident,” Goodell said. “This is about the rights that we negotiated in 2011, the rights for us to have the authority to make sure we discipline.”


Berman ruled in September that the NFL violated the CBA in not providing notice to Brady about him being subjected to a four-game penalty for being “generally aware” of a ball-deflation scheme, and that Brady should have been able to cross-examine NFL executive Jeff Pash and review the NFL’s attorney notes at Brady’s appeal in front of Goodell in June.

In their brief filed Monday, the NFL argues that Berman exceeded his authority to overturn Goodell’s decision, and that the CBA gives Goodell broad powers to discipline conduct that is detrimental to the game.

“For over 40 years, the CBA has granted the Commissioner broad authority to impose discipline, including ‘a fine or suspension,’ on a player who engages in ‘conduct detrimental to the integrity of, or public confidence in, the game of professional football,’ ” the NFL wrote. “The CBA does not define what misconduct falls within this authority; nor does it specify any presumptive or maximum discipline for engaging in such conduct.”

The NFL argues that Berman “fundamentally failed to apply the correct legal standard,” that his “fair notice concerns were misplaced” and that he “was wrong to second-guess the commissioner’s application of his (disciplinary) authority.”

The NFL also argues that Goodell’s procedural rulings in Brady’s June appeal “provide no basis for vacating his final decision,” and that the appellate court “should order enforcement of the commissioner’s award,” or the four-game suspension originally given to Brady.

“Brady participated in a scheme to interfere with the officials’ ability to enforce rules going to the very heart of the game, and then not only refused to cooperate with the investigation into that scheme, but also affirmatively obstructed that investigation by destroying highly relevant evidence,” the NFL wrote.


“It struck at the heart of the game’s integrity and the public’s confidence in the NFL’s on-field product. The Commissioner’s conduct detrimental authority exists for incidents just like this.”