Can Tom Brady Exploit a Legal Loophole?

Tom Brady seems to be staring down the barrel of an appeals court loss to the NFL, but did Judge Richard Berman leave a legal loophole Brady could exploit?

By almost all accounts, Tom Brady’s outlook after his lawyer spent last Thursday getting drilled by the three judges ruling on the NFL’s appeal is pretty bleak.  At least two of the three judges seem to be pretty clearly in the NFL’s corner, and a 2-1 decision in the NFL’s favor would mean Brady’s riding the bench for the first four games of the 2016 regular season.

Here’s just a sampling of the beatdown the judges dished out to Brady’s attorney Jeffrey Kessler, from Pro Football Talk:

"Regarding Brady destroying his cell phone: “Why couldn’t the commissioner suspend Brady for that conduct alone? 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.”Judge Parker also added that Brady’s explanation for destroying his phone “makes no sense whatsoever”.Judge Denny Chin called the evidence of Brady’s involvement in a ball deflation scheme “compelling, if not overwhelming”."

Yikes.

Sports Illustrated’s Michael McCann, who’s been providing legal commentary on the case since Brady took his appeal to court the last spring, had this assessment:

"“Based on the judges’ line of questioning on Thursday, Judge Parker seems very inclined to rule for the NFL. Judge Chin mostly seemed to favor the NFL’s perspective, although he also raised serious criticisms of the NFL’s arguments. Judge Katzmann was mostly neutral, although I thought the balance of his comments and questions favored Brady. I expect it will be a 2–1 decision, with higher odds it falls in the NFL’s favor than in the NFLPA’s favor.”"

If that happens, obviously, Brady is toast, and his suspension will stand.

Aside from the judges’ decision going 2-1 or 3-0 in favor of the NFL or Brady, though, there’s a third possible outcome – the court can send the decision back to Judge Richard Berman to be heard again by the same judge that ruled on the case the first time.  And if that happens, both Tom E. Curran of CSNNE and Mike Florio of Pro Football Talk pointed out that Judge Berman might have left himself a technical way to rule in Brady’s favor again.

Here’s the tweet Curran was replying to:

Sure, that’s a lot of dominos that have to fall in order for that scenario to even happen, but what Curran & Florio are saying is that Judge Berman avoided addressing the NFLPA’s argument that Roger Goodell was biased and partial in his decision entirely.  And Florio thinks Berman might have left that wide open so that he could base a new decision on Goodell’s partiality as an arbitrator if the case made it back to his court.

In other words, there’s a solid chance Judge Berman knew that his decision would be appealed (of course it would be, since the NFL can throw as much money at a problem to make it go away as they want), and that he also knew there was a chance the case would get sent back to him to rule on again, and that Judge Berman also made a plan to rule the same way if that exact scenario went down.

The Joker would be so proud.

You can read more of the legal reasoning in a Pro Football Talk post from last year here, if you’re into that kind of thing.

Is the case getting sent back to Judge Berman a likely outcome?  Heck, I have no idea.

Next: Will Rick Porcello and Joe Kelly have bounce-back seasons?

But if it does, and Judge Berman rules that his initial ruling was correct, hopefully Roger Goodell can appreciate the irony of being told…

(puts sunglasses on)

“I uphold my own decision”