Tom Brady suspension: Judge hammers NFL on several key points

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(Sketch by Jane Rosenberg)

NEW YORK — A federal judge who could rule on NFL star Tom Brady’s four-game suspension continued Wednesday to urge the NFL and players’ union to settle the case while also asking pointed questions of lawyers representing the league about how the scandal known as “Deflategate” was handled.

U.S. District Court Judge Richard Berman said each side has enough strengths and weaknesses to warrant a settlement but if the NFL and the NFL Players’ Association cannot make a deal, he will try to rule on the matter by September 4, six days before the Patriots’ first regular-season game.

The question is whether Brady will quarterback the defending Super Bowl champions in that contest against the Steelers. If Berman’s questions during Wednesday’s oral arguments are a clue, it appeared the NFL’s suspension of one of its marquee players might be overturned or reduced.

Berman asked NFL lawyer Dan Nash why the penalty for knowing about a scheme to deflate footballs below the NFL standard was equivalent to the penalty for a player using performance enhancing drugs.

Nash told the judge each was about gaining a competitive advantage and was about the integrity of the game.

Berman replied that he didn’t see them as comparable offenses.

The judge also dissected the four-game suspension and ask how many games were for participating in the ball tampering plan and how many were for failing to cooperate with the investigation.

Nash said the collective bargaining agreement, which is the compact between the league and players, doesn’t require the penalty to be broken down. He said it is up to the commissioner to determine the proper punishment.

The Deflategate controversy started when the New England Patriots were accused of using 11 underinflated footballs to gain a competitive advantage in the Patriots’ AFC championship victory over the Indianapolis Colts on January 18.

Brady has denied involvement, but the NFL suspended him four games without pay in May. Brady appealed, and Goodell upheld the suspension. Both the NFL and the players’ union filed to have the suspension ruled on in federal court.

Berman on Wednesday asked Nash about the Wells report, asking him where it states that it specifically deals with January 18. Berman said that it doesn’t is “a bit of a problem” that a finding for that game is conspicuously absent.

Attorney Michael McCann, who writes about legal issues for Sports Illustrated, said to be careful about reading into the judge’s questions. Much of the discussion in this latest round has been in private, and Berman may have been, in essence, playing devil’s advocate on Wednesday, McCann wrote.

But McCann also wrote that Berman appeared to be very dissatisfied and critical of the NFL and how it handled the case.

He pointed out that Berman questioned the league on why Brady’s lawyers couldn’t question NFL general counsel Jeffrey Pash at the quarterback’s appeals hearing. Pash edited the report prepared by attorney Ted Wells, who led the team that investigated the case.

Nash said the commissioner didn’t think Pash was a relevant witness.

Berman warned the NFL that an arbitration decision could be set aside if a key witness didn’t appear at an arbitration hearing, McCann and other media outlets reported.

ESPN writer Adam Schefter also saw Wednesday as a positive day for Brady’s team.

“If Judge Berman was critical of NFL last week, he was even more critical today. Questions of fundamental fairness and evident impartiality,” he tweeted.

During his arguments, Nash noted that Goodell didn’t find Brady credible during his appeal testimony and also said Jeffrey Kessler, a lawyer for the union, was misstating facts during his arguments.

None of the lawyers talked to the media as they left court Wednesday.

If no settlement can be reached, the two sides will be back in court on August 31. Brady and Goodell have been told to attend. ESPN reported sources told the network that no more settlement talks have been scheduled.

If Berman does rule on the case, his decision can be appealed.

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