Deflategate has become like that first courtroom rendering of Tom Brady — abstract, unrecognizable, and distorted from reality.
For provincial Patriotologists, Deflategate is still about Brady’s freedom from a four-game suspension and overturning the tyranny of a commissioner who has poached the Patriots’ draft picks and impugned their reputation. It’s about truth, justice, and the Patriot Way.
However, Deflategate goes well beyond parsing deflated footballs, dubious science, and a discarded cellphone. The greatest quarterback of all time is merely a Ping-Pong ball being batted back and forth in federal court as part of a desperate power struggle between the NFL and the NFL Players Association over commissioner Roger Goodell’s authority and sovereignty in player discipline.
Brady wants to be throwing footballs Sept. 11 when the Patriots open the season in Arizona. But his punishment, reinstated Monday by the US Court of Appeals for the Second Circuit, has become a political football.
What’s truly deflating is that this saga isn’t about guilt or innocence. It’s about control. The NFLPA wants to wrest it from Goodell. He wants to retain it.
“I’ve said it publicly many times, [the Brady appeal] is not an individual player issue,” said Goodell at Super Bowl 50. “This is about the rights we negotiated in our collective bargaining agreement. We think they are very clear. We think they are important to the league going forward, and we disagree with the district judge’s decision.”
District Judge Richard M. Berman vacated Brady’s suspension in September, citing legal precedent that Goodell had dispensed “his own brand of industrial justice.”
Truer words have rarely been written.
However, in a 2-1 decision, District Judges Denny Chin and Barrington D. Parker sided with the NFL on appeal and basically declared that it was Berman who had dispensed his own brand of industrial justice.
Parker’s majority opinion was the Berman Ruling in Context.
While Berman cloaked his decision in the law, anyone who read the transcripts of the arguments he presided over in August knows that the impetus for his decision was the NFL’s lack of hard evidence and clearly prejudicial handling of the case. He gleefully made the NFL wilt under the klieg lights of his court.
Berman’s decision was rendered with a sense of justice. Unfortunately, justice and the law don’t always see eye to eye.
“Our role is not to determine for ourselves whether Brady participated in a scheme to deflate footballs or whether the suspension imposed by the Commissioner should have been for three games or five games or none at all,” wrote Parker. “Nor is it our role to second–guess the arbitrator’s procedural rulings.
“Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act . . . These standards . . . dictate that even if an arbitrator makes mistakes of fact or law, we may not disturb an award so long as he acted within the bounds of his bargained-for authority.”
This is the NFL’s argument. Goodell might have butchered this case beyond recognition, but he has the collectively bargained right to butcher this case beyond recognition.
For the NFLPA, the case is about trying to install safeguards in the disciplinary process that it failed to achieve during the 2011 lockout.
It wants the courts to provide a remedy before 2020, the final season of the CBA, using Brady as a quarterback cause célèbre.
When Patriots owner Robert Kraft was busy saving football, he could have helped NFLPA president DeMaurice Smith negotiate limits for the commissioner’s authority that would have saved his quarterback.
It’s easy to blame NFL owners or Smith for not tempering Goodell’s plenipotentiary powers under Article 46. But the players wanted their paychecks, and to get them they sacrificed one of their primary goals of the CBA negotiations: blunting Goodell’s authority. It has proven far more costly than any lost lucre.
The NFLPA’s motivation is not proving Brady’s innocence as much as it is proving the unlawfulness of Goodell’s actions. Providing relief for Brady, who erred by shunning the NFLPA’s legal guidance at the outset of the Wells investigation, is an ancillary benefit.
It’s only the Patriots and their fans who still believe this case is about TB12 and PSI. The Ideal Gas Law is merely a means to a labor law end.
Brady and the NFLPA are rapidly running out of legal real estate. They can ask for an appeal before the entire panel of Second Circuit judges or petition the Supreme Court.
A global settlement that would reduce Brady’s suspension and resolve the Adrian Peterson suspension case, which the NFL appealed, makes sense. That settlement could also include some concessions from the NFL that would instill more — well, any — fairness and objectivity into the player discipline process. But good luck getting Brady to sign off on that, even if it’s for the betterment of all players, if he has to accept any guilt.
The prior settlement talks Brady had with the NFL failed because the league wanted him to accept the findings of the Wells Report. There’s a better chance of Brady swapping avocado ice cream for a daily Big Mac and Coke.
And why would the league settle now?
After all the slings and arrows Goodell and the folks at Fortress Football, 345 Park Avenue, have endured, it makes little sense to compromise when this close to total victory.
Some have suggested Goodell should amend Brady’s punishment for the good of the game. That’s logical, but a commissioner who desperately needs a win probably won’t pass up a victory parade.
Also, it wouldn’t play well with those owners who want their pound of Patriot flesh and enjoy keeping the employees under their thumbs.
No matter Brady’s stature, brand power, or closeness to the Krafts, he is still just another employee.
And Deflategate is about an employer and a union jockeying for high ground, nothing more.