The latest episode in the long-running DeflateGate saga unfolded Thursday, and in keeping with the pendulum swings between Tom Brady and the NFL, the Patriots’ quarterback may have gotten the worst of it in a hearing before the 2nd U.S. Circuit Court of Appeals in Manhattan. At issue was a September ruling by a U.S. District Judge that overturned Brady’s four-game suspension, one that Commissioner Roger Goodell, acting as an arbitrator, had upheld.
The three-judge panel wasted no time in peppering Jeffery Kessler, a players’ union attorney representing Brady, with questions. At one point, Judge Denny Chin told Kessler, “Evidence of ball tampering is compelling, if not overwhelming.”
Brady’s destruction of a cellphone he owned, rather than turning it over to the NFL’s investigation team, also appeared to trouble the panel. The league claimed that not getting a chance to examine the phone’s contents, including thousands of text messages, impeded its probe into allegations that the quarterback was behind a scheme by Patriots staffers to deflate footballs before the AFC championship game in January 2015.
“An adjudicator looking at these facts, it seems to me, might conclude that the cellphone had incriminating information on it and that, in the teeth of an investigation, it was deliberately destroyed,” Judge Barrington D. Parker said (via the Associated Press). “So why couldn’t the commissioner suspend Mr. Brady for that conduct alone?”
“With all due respect, Mr. Brady’s explanation [that he often destroyed his phones to maintain privacy] made no sense whatsoever,” Parker said, adding (via the Providence Journal), “You have one of the most celebrated players performing in that fashion? Anybody within 100 yards of this proceeding knew that would raise the stakes.”
Kessler argued that Goodell had far exceeded his authority, as determined by the NFL’s collective bargaining agreement, in sticking Brady with an unprecedented punishment. Judge Robert Katzmann responded by positing that the commissioner could be expected to face “novel” situations, and he asked (via Reuters), “Isn’t that why the language in the agreement gives the commissioner broad authority for dealing with conduct detrimental?”
The NFL’s attorney, Paul Clement, spoke first before the panel, and he emphasized that the CBA gave the commissioner power to punish players for “conduct detrimental to the league.” He noted that, although Brady’s destruction of the phone had nothing to do with the original decision to hand him a four-game suspension, it added to Goodell’s decision to uphold that ruling during the arbitration process.
Parker pointed out to Clement that the CBA essentially makes Goodell “the judge, the juror and, execution is not the right word, but the enforcer.” The appellate judge noted that this provision made the Brady case different than their usual arbitration reviews.
Parker also said (via the AP) that sitting Brady for four games seemed at “first blush, a draconian penalty.” He asked, “What’s the advantage you get from an under-inflated football?”
However, the possibility that Brady may have impeded the NFL’s investigation appeared, from reports, to weigh heavily on the judges’ minds. There is no timetable for their eventual ruling.
Clement urged the panel to make its decision in short order, lest the DeflateGate issue hang over yet another NFL season. If the appeals court sides with the league, Brady may indeed have to sit out the Patriots’ first four games, pending an appeal of his own.