MANHATTAN, NY -- After seven months of Deflategate deadlock between the NFL and poster-boy quarterback Tom Brady, the League came under intense questioning from a federal judge during a hearing here Wednesday.
Attorneys for the NFL and NFLPA on behalf of Tom Brady met in Judge Richard Berman's courtroom in downtown Manhattan Wednesday, but the dispute's key players, Tom Brady and NFL Commissioner Roger Goodell, were not in attendance for the two-and-a-half hour hearing.
Judge Berman noted that Brady and Goodell will be required to attend the next and final hearing on August 31. Berman assured that unless a settlement is reached — which at this point seems about as likely as Bill Belichick flashing a smile on the sideline — he will try to issue a decision by Sept. 4 to narrowly miss the NFL season kickoff on Sept. 10.
NFLPA attorney Jeff Kessler delivered an hour-long, scattered diatribe about the NFL's limitations of power and the role of Goodell as arbitrator in his client's appeal hearing. His arguments nit-picked at the NFL's own player policy handbook, though Berman often had to stop and ask for clarification about the very points Kessler was making.
In short, Kessler said Brady had not been given adequate notice that he could be punished for being "generally aware" — as was the finding in the NFL-commissioned investigation prepared by attorney Ted Wells — of wrongdoing, rather than actively participating. He said the NFL bylaws are clear that a player must know in advance what type of sanctions they might receive for various infractions. Kessler said that "equipment violations," which he said is where tampering with footballs falls in the complex system of NFL policies, is subject to only a fine.
Later, NFL attorney Daniel Nash disputed this simple classification of the alleged wrongdoing, calling it much more serious than a simple uniform violation.
But as Kessler spoke, Berman asked a bigger question: Why don't key sentences in the Wells Report make specific mention of wrongdoing during the Jan. 18 AFC Championship, the game in which the allegedly deflated footballs were first brought to the NFL's attention? Specifically, Berman referred to the section of the report that concludes, "It is more probably than not that Tom Brady (the quarterback for the Patriots) was at least generally aware of the inappropriate activities of [the locker room attendants] involving the release of air from Patriots game balls."
"Mr. Wells is a smart guy!" Berman said, asking why he had phrased that sentence as such.
Kessler snapped out of his granular line of arguing: "That is an outstanding observation, your honor."
It's an observation Berman first asked the NFL last week during the first hearing between the parties. On Wednesday, though, it became clear that the judge finds it an extremely important question -- and that he has not yet received a satisfactory answer.
With Nash at the podium, Berman said mention of the AFC Championship was "conspicuously absent" in the vague phrasing of definitive sentences in the report.
"It probably had been done before," Nash offered.
"That's a problem for me," Berman replied, kicking off a line of intense questioning directed at the league that proved difficult for Nash to answer satisfactorily to the judge's liking.
Next, Berman moved on to the game-by-game breakdown of Brady's suspension. How much of the suspension wad due to his "general awareness" of ball tampering versus his lack of cooperation with the league's investigation by not turning over his cell phone?
"The four-game suspension is based on an aggregation of ball tampering and 'uncooperation,'" Berman noted. "Next time someone tampers with a ball but cooperates with the investigation, what happens?"
"That would be up to the commissioner's sound judgment," Nash replied.
"I'm a little troubled by that," Berman said. He then asked about an explanation Goodell offered in his statement on upholding Brady's suspension, in which he said four games was "lenient," but comparable to the standard four games given to players who use performance enhancing drugs.
Goodell called steroid use "the closest parallel of which [he is] aware," explaining that deflating footballs and using PEDs are both in pursuit of a "competitive advantage," and that Brady's uncooperativeness was akin to a steroid user's efforts to conceal his use.
Berman said this explanation "raised more questions in my mind than it answered."
He was incredulous as he asked Nash to explain the logic of the comparison, and Nash deferred again to the shared "competitive advantage" aspect of the infractions. However, Berman interrogated him again, and it seemed Nash's explanations failed to satisfy the judge.