Brady, and perhaps Brady alone, knows what happened with the Patriots’ footballs before kickoff of the AFC championship game last January. He steadfastly has said he did nothing wrong. The NFL contends he knew of a systemic operation to deflate the balls below what league rules allowed, but in no way have they proved it. Did Tom Brady cheat? We don’t know, and we probably never will.
Many rushed to judge Brady in the aftermath of the NFL-commissioned Wells Report and believed the league was justified in suspending Brady. I was one of them. The interceding months have changed my opinion. The most honest thing you can say about whether Brady intentionally and illegally ordered footballs to be deflated is that we don’t know. Berman’s smacking down of the NFL in open court – in which he called Commissioner Roger Goodell’s inference that Brady helmed a “scheme” to deflate the footballs based on evidence from the Wells Report a “quantum leap” – helped reveal the NFL’s weak case.
The evidence, still, is murky. The Wells Report used the research firm Exponent to make its case that Brady, or someone under Brady’s orders, had tampered with the balls. But many scientists believe the inflation of the Patriots’ footballs could have fallen below an acceptable level under the principles of the Ideal Gas Law. A scientific analysis by the American Enterprise Institute blasted the methods used by Exponent.
That doesn’t mean he’s innocent, or that it’s wrong to be suspicious of Brady. His own legal team admitted he should not have destroyed his cell phone when the NFL called on him testify. But the alleged evidence that Brady cheated has not held up to scrutiny. If Brady cheated, the NFL still hasn’t proved it.
The NFL relied on ESPN’s erroneous report to sway public opinion and on dubious science in the Wells Report as the basis for their suspension. Even if Brady does not receive a suspension, the assumption that he did something nefarious will remain. The story will be swept into the narrative that the Patriots will use illegal means to get an edge. That’s the NFL’s doing, and it cannot be reversed in any court.
Brady will not have the chance to absolve himself. The NFL’s judgment – “at least generally aware” will hover over him long after he retires. In New England, from the start, his own fans stood behind him with vehemence. In every NFL stadium this season, he surely will hear taunts and see signs about the firmness of the footballs he throws. When fans see his name in record books and watch his old Super Bowl highlights, they will wonder. “Deal with it – Tom Brady and the Patriots are cheaters,” read a Boston Globe headline in late July.
If Brady is as innocent as he claims, the frustrating thing for him must be that all his toggling from the practice field to the courtroom has had nothing to do with his on-field actions. The case before Berman is whether the NFL and Goodell acted in an arbitrary or capricious manner, or with evident partiality. If Brady wins, he can play. His name will not be cleared. Doubt will remain attached to him, whether or not he wanted to break the NFL’s rules.
For both sides, Brady has become a cause. The NFL wants to maintain its absolute power over players, which it insists the collective bargaining agreement grants. If it settles with Brady or Berman vacates its suspension, it will provide other players with both a blue print and incentive to appeal disciplinary action in the future. The NFLPA wants to use the case as a precedent, to make sure the NFL does not abuse players. Both sides stopped arguing about Brady’s guilt or innocence long ago.
If Brady wins, the NFL likely will appeal. If it cares at all about saving face and adhering to what it claims to be its values, it should accept the ruling and move on. The NFL claims to be fighting Brady on the basis of competitive fairness – “the integrity of the game.” By further dragging out the case, the NFL would impact the Patriots’ season further by muddling their quarterback situation. Already, 31 teams have named an opening week starter at quarterback. The Patriots have to wait. If Berman sides with Brady, their season shouldn’t be further affected by the heavy-handed league office.
“If Brady loses, which is not going to happen, Berman or the 2nd Circuit could issue a stay and Brady could have to serve the suspension later when the second circuit rules,” said sports litigator Alan Milstein, who has long predicted a Brady win in court. “As to why the NFL won’t settle to save face, when it knows it is going to lose, only arrogance could explain it.”
When Berman makes his announcement, Brady has a real chance to win in court. He will not be able to reclaim what he’s already lost: his reputation.