Hurley: Still No Reason For Brady To Lose Case Against Goodell, NFL
BOSTON (CBS) -- When U.S. District Judge Richard Berman addressed both the NFL and the NFLPA in their first public meeting on Aug. 12, he issued a word of caution: "Nothing that I say or anything that I do say should not be taken as an indication of my ultimate legal decision."
Essentially, the judge cautioned everyone following the proceedings to not jump to conclusions or speculate based on the judge's behavior.
Yet after Monday's final meeting, what else are we left to do?
There were no fireworks in Berman's courtroom, no final arguments with smoking guns, no dramatic finishes that we often see in TV dramas. Instead there was only, essentially, a thanks for coming, we'll talk to you soon.
It raises the question of just why Tom Brady and Roger Goodell had to attend this meeting in person. Perhaps the judge wanted to see all involved parties before making a ruling, as to drive home the point (in the privacy of the robing room) that neither side may be happy after a ruling and that a settlement can still generate an ideal outcome for all involved.
But Berman, having been in charge of this case for the past month, had to have known that a settlement was just not going to happen. And on that same token, the judge must have already had his mind made up when he headed to the courtroom on Monday.
And so, now we wait for Berman to issue that ruling. It will likely come Tuesday or Wednesday, leaving plenty of time for Brady to file an appeal with a request to postpone his suspension if the ruling goes against the quarterback. And if the judge rules to vacate the suspension, then it would be up to Goodell and his lawyers to decide if they want to appeal the decision.
On the one hand, there will be reasons for the NFL to take that avenue. For one, a loss in court would strip Goodell of some of the almighty discipline power he so badly wants to keep, and appealing the case to the Second Circuit would give him the chance of reversing Berman's decision. And beyond the disciplinary power, losing this case would be exceptionally embarrassing for Goodell, who authorized the spending of millions of dollars for an investigation into the possibility of a trivial transgression against the "integrity of the game." So much time and money has been spent on "DeflateGate" that it would be surprising for Goodell to simply throw up his hands and say "Oh well, we tried" after a ruling goes against him.
However, one must remember that Goodell works for the owners. And the owners, more so than Goodell, might actually care about what's best for the game and for the league. And certainly, continuing to hunt one of the game's biggest stars even after a federal judge deems your case to have been flawed, incorrect and/or biased would certainly present a very perplexing image not only to all NFL players but also to the public at large.
At least one owner -- who, of course, refused to attach his name to his comments -- has stated that "DeflateGate" has been "embarrassing to our sport" and added, "Think about how long this has gone on. This shouldn't happen." It took a very long time, but the proceedings in Judge Berman's court have gone a long way toward turning the tide in terms of public perception. And in that regard, if Goodell continued the campaign against Brady after a federal ruling goes against him, the commissioner could face a long road of appeals which Judge Berman estimated might take about two years to complete. In doing so, he'd risk looking like a vengeful leader who's putting the interest of his own image ahead of that of the NFL.
Some might argue that it would be a hypocritical stance to not hold Brady to the same standard. That is, if Goodell must accept a ruling against him without appealing to a higher court, then so too must Brady.
However, no matter where you might stand on what may or may not have taken place and what Brady may or may not have known, there are elements of Brady's case which are strictly factual. No player has ever before been suspended for "general awareness" of any other person's wrongdoing. No player has ever before been suspended for "non-cooperation." In fact, in a nearly apples-to-apples comparison with New York Jets kicking balls in 2009, the kicker (aka the person most likely to benefit from manipulated footballs) was not investigated or questions. Instead, the member of the equipment staff in charge of the footballs was suspended.
Likewise, the situation last season in Minnesota, when ball boys were shown on TV holding footballs in front of heaters on the sideline, was disregarded by the NFL. The league only sent memos to the teams to inform them that such manipulation was not allowed, and through the current proceedings, the league stated that there was no awareness by any player that such an action would be taken on the footballs. Yet in the case of Brady, the NFL has argued that it is impossible for the balls to have been manipulated without Brady's direct order.
As stated earlier, it doesn't matter whether one believes in the guilt or innocence of Brady. The facts show that there is zero precedent for the four-game suspension -- or a suspension of any length at all -- for anything like this. And by that measure, Brady would have to appeal. His position is quite different from that of the league, and given that there's a finite number of games left in his career, ceding any of them to a punishment that does not fit the "crime" would be a nonsensical move for any player.
(And none of that even mentions the fact that in his ruling to uphold his own decision, Goodell lied about what Brady said during the appeal hearing at NFL headquarters. He lied because he thought he could get away with it, because the public was never supposed to read the transcript of that hearing. Considering that's becoming a pattern of behavior for the commissioner, that might be a major mark against him when the owners finally move to replace him.)
Again, back on Aug. 12, Berman tried to make it clear: "Judges, very often, ask questions sort of as devil's advocates. That doesn't mean that I think that one side or the other has the stronger case so, please, take that into account when we have this discussion."
Even with that warning, it was hard to watch the proceedings play out without feeling the judge simply does not believe the NFL's case. The case was supposed to be about process and about the CBA, but in the public meetings, Berman never really even made it that far. He could not get past the factual "basis" for the case, and his line of questioning only became sharper against the NFL in the second meeting on Aug. 19. And the NFL's strongest "argument" in return has only been, essentially, "We have a CBA that allows the commissioner to act however he sees fit, and there's nothing a player or a judge can do to overrule his decisions."
That argument might be easier to digest if Goodell had not made a habit in recent years of losing in court to players -- players who were subjected to the same CBA which the NFL has been trying to purport as being bulletproof. Though it doesn't impact this case directly, last week U.S. District Judge David Doty said in Minnesota, "I'm not sure the commissioner understands there is a CBA." That comment should at least provide an indication that judges aren't exactly beholden to decisions made by the commissioner of the NFL, and that commissioner's CBA is not a catch-all shield against any overreaching decisions.
At the start of August, before Goodell or Brady showed up to any courtrooms, Brady's side seemed to have the clear advantage in this case. A month later, not one statement from the judge or either sides' attorneys has shifted the balance away from Brady and the NFLPA.
Tom Brady should win this case. Now, we wait for Judge Berman to affirm this belief, thereby letting common sense prevail.
Read more from Michael Hurley by clicking here. You can email him or find him on Twitter @michaelFhurley.