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Did Judge Berman rule correctly in Tom Brady case?

Tom Brady left federal court after a judge erased his four-game suspension.
Tom Brady left federal court after a judge erased his four-game suspension.Richard Drew/AP/File

Tom Brady’s conduct during Ted Wells’s Deflategate investigation was put on trial before the NFL in an arbitration hearing last June.

Roger Goodell’s conduct during the arbitration hearing, in which Brady appealed his four-game suspension, was put on trial in August in federal district court.

Now it’s Federal Judge Richard M. Berman’s turn.

Thirteen months after the AFC Championship game in which the NFL accused Brady and the Patriots of deliberately taking air out of their footballs, the NFL and the NFL Players Association will once again meet in federal court Thursday to argue whether Goodell had the right to suspend Brady for four games for his alleged transgressions.


The venue this time will be the US Court of Appeals for the Second Circuit in New York, and the issue won’t be whether Brady and the Patriots did or did not deflate those footballs. Instead the central issue will be whether Berman, the judge who ruled in favor of Brady and the NFLPA in a federal lawsuit and vacated Brady’s four-game suspension, applied the law properly and had the ability to overturn Goodell’s punishment.

Judge Richard M. Berman enters federal court in New York Sept. 3.
Judge Richard M. Berman enters federal court in New York Sept. 3. larry neumeister/AP file/Associated Press

The NFL filed its appeal Sept. 3, the same day Berman ruled for Brady.

“The issue is, ‘Did Judge Berman do it right?’ ” said Dennis Lalli, a labor and employment attorney at the New York firm Bond Schoeneck & King who has argued a half-dozen cases in front of the Second Circuit. “Did Judge Berman apply the proper legal standards, or did he decide the case the way he thought the arbitrator should have decided it?”

“It’s not necessarily Brady and the footballs on the hot seat; it’s Berman,” added Jason Bonk, an attorney at Cozen O’Connor in New York who has followed the case closely. “Was his conclusion of fundamental fairness being absent from the NFL’s arbitration proceeding valid enough to overturn the league’s decisions?”


And while most legal experts believe Brady and the NFLPA have a strong case, it certainly isn’t open and shut. The NFL has received support from Dallas Mavericks owner Mark Cuban and former NBA commissioner David Stern, among others, in the months since Berman’s decision.

“In a court with one of the busiest dockets in the nation, Judge Berman was dazzled by the headlights of professional sports and crossed into the wrong lane and engaged the federal courts in the intricacies of running a sports league, where they have no business,” Stern told Sports Illustrated.


Let’s refresh ourselves on the facts up to this point:

■  Last May, the NFL suspended Brady four games for being “generally aware” of an alleged scheme by two Patriots employees to deflate footballs after the referee’s inspection before the AFC Championship game Jan. 18, 2015.

■  On June 23, Brady appealed his punishment in front of Goodell, who acted as the arbitrator.

■  In late July, Goodell denied Brady’s appeal and upheld the suspension. Within minutes, the NFL filed a lawsuit against the NFLPA to affirm the punishment, just hours before Brady and the NFLPA filed their own lawsuit demanding that the punishment be vacated. Because the NFL filed its suit first, the case was heard in New York federal court, not Minnesota.

■  On Sept. 3, Berman ruled in favor of Brady and the NFLPA and vacated the four-game suspension based on three missteps from the June 23 appeal:


1. The NFL did not provide Brady with adequate notice of his potential penalties.

2. The NFL did not make league attorney/executive Jeffrey Pash, who had edited Wells’s report, available to testify at the hearing.

3 The NFL did not share some of Pash’s notes with the NFLPA.

■  The NFL immediately filed its appeal with the Second Circuit, but did not stand in Brady’s way from playing the entire 2015 season.

A timeline of Deflategate events:

Appeal proceeding

Thursday’s appeal will be held in front of three judges assigned at random — Chief Judge Robert A. Katzmann, Barrington D. Parker, and Denny Chin — and will be relatively short, with each side getting about 15 minutes for oral arguments and questioning from the judges.

Katzmann and Chin were both appointed by Democrats (Bill Clinton and Barack Obama) and Parker by a Republican (George W. Bush), but their political leanings won’t have much impact on the outcome, legal experts say.

“Party lines can be a helpful shortcut, but it’s not always accurate,” said Gabe Feldman, a professor and director of the Tulane Sports Law Program. “Sports cases tend to have an unpredictable impact on how judges rule, and it’s not always as simple as labor vs. management.”

Chin, for example, was a major employment and labor attorney for several New York City unions in the 1980s, but “contrary to my expectations, I haven’t seen any evidence of pro-employee or pro-union bias in his decisions,” Lalli said.

Kessler will once again represent Brady and the NFLPA, but the NFL beefed up its legal team this time, adding former US Solicitor General Paul Clement as its lead attorney. Clement, who now works for Bancroft PLLC in Washington, says in his bio that he has argued more than 80 cases in front of the US Supreme Court, more than any attorney since 2000.


Both the NFL and NFLPA have already submitted lengthy briefs outlining their arguments, which the judges will have read and digested before Thursday. The hearing will be an opportunity for the judges to question both sides and get clarification to any questions.

The decision phase often takes six months or more, because of the judges’ busy schedules and the precision required in their written rulings. Whichever side gets the decision of at least two of the judges will win the case.

But the concept of “winning” is not necessarily cut and dried, especially if the NFL prevails.

If Brady wins

Should the appellate court rule that Berman did not overstep his bounds in vacating Brady’s punishment, then Deflategate might finally be over with. The NFL could appeal to the entire Second Circuit and then the US Supreme Court, but the chances of getting the case heard would be slim.

The NFLPA’s argument is similar to the one it successfully made in front of Berman: That the June 23 appeal was fatally flawed because Pash should have been made available to testify at the appeal, Pash’s notes should have been shared with the NFLPA, and Brady was never given any notice that he could be suspended for being “generally aware” of another person’s wrongdoing or not cooperating with an investigation.


The NFLPA’s brief says several times that NFL rules state that “first offenses will result in fines” for equipment violations.

“The PA will argue that the ‘notice’ effect is incurable, that you can’t undo the lack of notice,” Feldman said.

“Brady has a lot to work with,” Lalli added. “The arbitration act has very limited grounds for setting aside an arbitrator’s decision, but one of them is where the arbitrator fails to admit evidence.

“The evidentiary issue is a tough one for the NFL to overcome.”

If NFL wins

The NFL’s main argument is that Goodell’s punishment did not stray far enough from the essence of the league’s CBA for Berman to overturn the punishment.

The NFL writes in its briefs that Goodell’s punishment of Brady was “eminently reasonable” based on powers granted to the commissioner in Article 46, and “comes nowhere close to the sort of ‘bad faith’ or ‘affirmative misconduct’ required to vacate his award.”

The NFL also strengthened the language against Brady, raising his level of involvement from “generally aware” to “involvement in a deliberate scheme to deflate game balls . . . and his conscious effort to destroy the evidence of his wrongdoing during the League’s subsequent investigation.

“Brady’s unique and aggregate misconduct posed a threat to the integrity of and public confidence in the game.”

Much the way the initial lawsuit focused on the process of the NFL’s June 23 arbitration, this appeal will focus on the process used by Berman to come to his decision Sept. 3.

“This is not going to be an opportunity to re-litigate whether Tom Brady did or did not deflate the footballs,” Feldman said. “The key here is going to be whether the Second Circuit ultimately agrees with Judge Berman’s findings that the NFL’s process was fatally flawed.

“From the NFL’s perspective, they have the same arguments they had in front of Judge Berman — that they have a fair process, and that Judge Berman’s decision should be overturned simply because federal courts should not interfere with arbitration decisions absent extreme circumstances.”

What are the outcomes?

Should two of the three judges agree with the NFL, legal experts say, the judges have three options:

1. They could simply overturn Berman and reinstate the punishment and Brady could be looking at a four-game suspension to start the 2016 season (at which point Brady could appeal the decision to the entire Second Circuit and US Supreme Court).

2. They could remand the case back to District Court and have Berman hear the lawsuit all over again.

3. They could force the NFL and NFLPA to redo another arbitration hearing in place of the one held June 23.

But the likeliest scenarios appear to be either affirming Brady’s victory, or overturning Berman’s decision and reinstating the four-game suspension.

“Because there’s such little dispute about the facts of this case, I think that a vacating-and-remanding is unlikely,’’ Lalli said. “They’re either going to affirm or reverse. There’s not much dispute about what happened [at the June 23 hearing]. The only dispute is, ‘What are the legal consequences about what happened?’ ”

Although many legal experts believe Brady and the NFLPA have the stronger case, all it takes is the opinion of two randomly assigned judges to side with the NFL and slap Brady with the four-game suspension.

“This is a case that reasonable minds can differ on,” Feldman said. “If this case had an easy, predictable answer, we would not be where we are now.”

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