Tom Brady, the embattled New England Patriots quarterback, and NFL Commissioner Roger Goodell have a court date tomorrow, Aug. 12, with Federal Judge Richard Berman in New York City — a meeting at which the judge expects both sides to update him on their attempts to reach a compromise over Brady’s “Deflategate” punishment.
But according to reports and analysis surfacing on Tuesday, the judge is likely to hear that there has been no progress, and that both sides are willing to go to court with a case that each believes it can win.
The problem for the NFL is, according to one analysis of similar NFL cases recently, Brady appears to be playing the stronger legal hand and a judge’s decision would almost certainly vacate the four-game suspension leveled at Brady by Goodell.
Berman has made it his judicial trademark to push civil cases into a settlement between warring parties, rather than to rule on them himself, and he has notched numerous successes involving famous litigants — including another Boston sports hero, David Ortiz, who became embroiled in a legal dispute with rapper Jay-Z.
But according to a Tuesday report in The Washington Post, Berman — who has ordered Brady and Goodell to a 10:30 a.m. meeting Wednesday — will have no such luck this time around.
“Efforts by the NFL and the union to reach a settlement prior to the case ending up in court were unsuccessful, and several people familiar with the case said they don’t think much has changed,” wrote Post NFL correspondent Mark Maske. “It is not clear if the two sides will hear anything Wednesday in court that will lead them to soften their stances.”
While the NFL believes that it can win in court based on the often-cited “Article 46” of its collective bargaining agreement with the NFL Players Association, a clause that gives the commissioner broad latitude to discipline players, several recent cases prove that simply citing Article 46 would not be the slam dunk that Goodell thinks it will be.
A detailed analysis by football commentator Matt Chatham, a former Patriots and New York Jets linebacker who also holds an advanced business degree, shows that in four recent cases, including the high-profile domestic violence and child abuse cases of Ray Rice and Adrian Petersen, respectively, courts have specifically ruled that Article 46 does not give the commissioner unlimited power.
In all four cases, Goodell justified player discipline by citing Article 46 — and in all four he was swatted down by courts.
“No matter how bad Roger wants to be God, he still has to draw his decisions ‘from the essence of the CBA’ where specificity doesn’t exist,” write Chatham, citing the four previous cases in which Goodell’s appeal to Articel 46 has fallen on deaf ears in court. “and he can’t ignore the law of shop (past practices of the industry and the shop). If he doesn’t, he gets his ass kicked. Again. History, not creative license.”
The “essence of the CBA,” and “law of the shop” require that Goodell give Brady, or any player, reasonable notice that he may be subject to league discipline for a particular action, and that the commissioner, though he has a wide range of power under Article 46, does not have unlimited power to impose discipline without reason or justification.
Brady has flatly denied wrongdoing in the Deflategate case, in testimony he gave under oath. And the NFL has yet to produce any solid evidence that he was involved in the conspiracy to deflate footballs that Goodell says he was, leading numerous experts to believe that it is Tom Brady, not the NFL, who has the law in his side should Deflategate end up in front of the judge.
[Image: Jeffrey Beall/Wikimedia Commons]