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Leagues and Governing Bodies

Judge Finds Flaws In Both Sides Of Deflategate Case; Should NFL Be Concerned?

Federal Court Judge Richard Berman yesterday quizzed attorneys for the NFL and NFLPA for over an hour about Deflategate, spending the bulk of the time on the league. Berman said at the public hearing, which was sandwiched between private settlement talks, that he had not made up his mind about the issue. The NFL has asked him to affirm a four-game suspension of Tom Brady for his alleged role in taking air out of balls before the AFC Championship game. However, Berman spent a lot time questioning the evidence behind that conclusion. He asked NFL outside counsel Daniel Nash repeatedly where the direct evidence was that Brady knew of deflation. Nash conceded there was no direct evidence. “Is there a text in which Mr. Brady instructs someone to put a needle in a football? No, there is not such direct evidence,” Nash said. Berman questioned whether the investigation that led to the suspension had been truly independent from the NFL. The NFL hired Ted Wells to conduct the investigation and described his role as independent, but Berman suggested strongly that the relationship was more akin to attorney-client. He did have questions for the NFLPA, though these only took around 20 minutes compared to 45 minutes for the NFL. He asked NFLPA outside counsel Jeffrey Kessler why Brady destroyed his phone. Kessler conceded Brady should have cooperated better with investigators and turned over all electronic communication, but that he had relied on legal advice he received from his agent. Kessler also introduced a new element to the phone story. It has been widely reported that Brady had his phone destroyed the day he met with Wells. Kessler said that Brady only received a new phone that day; the old phone could have been destroyed on another day (Daniel Kaplan, Staff Writer).

NOT HOLDING BACK: In Boston, Ben Volin notes Berman "didn't hold back," as he was "poking holes" in the arguments of the NFL and NFLPA. There were "flaws that were exposed on both sides." The parties "did meet with Berman privately in chambers for several hours after court was adjourned, presumably to continue settlement talks." Nash also called the union’s argument that investigator Wells and his law firm were not independent "a 'red herring,' noting that the collective bargaining agreement does not guarantee players the right to an independent investigation" (BOSTON GLOBE, 8/13). The WALL STREET JOURNAL's Kevin Clark notes in an "unexpected twist," Berman "spent much of the almost 90-minute hearing discussing the particulars of the Wells Report" rather than the league’s CBA (WALL STREET JOURNAL, 8/13). In Boston, Matt Stout notes Berman "jabbed ... at both sides' weak spots, but hit especially hard at the league as he continued to push the two sides toward a settlement." An NFL spokesperson said that both sides "agreed not to comment after spending more than four hours holed up" in Berman's office. Berman has "repeatedly encouraged both sides to reach a settlement, which he said the 'vast majority' of civil cases end in, while warning that a case like theirs, appeals included, have an average lifespan of two years." Berman also "emphasized that his questioning wasn't a sign of how he would rule." Neither NFL Commissioner Roger Goodell nor Brady "spoke during the hearing except to introduce themselves to the court" (BOSTON HERALD, 8/13). SI.com's Michael McCann wrote not to "expect a settlement anytime soon" and gave his five "legal takeaways" from the day (SI.com, 8/12). Meanwhile, the BOSTON GLOBE offers a profile of Berman (BOSTON GLOBE, 8/13).

FEELING A BIT UNSETTLED: ESPN's Chris Mortensen cited sources as saying that the NFL "changed its settlement offer to Brady on Tuesday, saying there will be no settlement unless Brady accepts the findings of the Wells report." But sources said that Brady "remains firm on his settlement terms: He will accept a fine, but no suspension, and will not admit guilt in the matter." ESPN.com noted Berman has "scheduled a second day of settlement hearings for next Wednesday." If a settlement "is not reached, Berman has been asked by all involved to make a decision by Sept. 4, which would be one of the Patriots' first days of practice" in preparation for the NFL opener against the Steelers on Sept. 10. NFLPA Exec Dir DeMaurice Smith said, "It was a productive day" (ESPN.com, 8/12). USA TODAY's Lorenzo Reyes notes Smith’s comments "are the sign that this case may -- finally -- be nearing a resolution, especially when it’s noted that his statement came almost five hours after Judge Berman adjourned the session and requested that both sides meet separately and privately with him" (USA TODAY, 8/13). YAHOO SPORTS' Charles Robinson cited a source as saying that from the NFL's "corner of the ring, the key to unlocking the settlement is Brady having to 'embrace that he shares responsibility' for the deflation of footballs prior to last season's AFC championship game" (SPORTS.YAHOO.com, 8/12). In N.Y., Ken Belson notes with a "reputation for getting adversaries to settle rather than litigate, Berman was seemingly unmoved by the notoriety of the litigants." Yet by "outward appearances, the two sides seem no closer to settling," which means Brady and Goodell "could be back in court in a week, extending the spectacle" (N.Y. TIMES, 8/13). N.Y. Daily News’ Bob Raissman said, "In the end, I don’t think Brady’s settling” (“Daily News Live,” SNY, 8/12). ESPN’s Jason Whitlock: “I don’t think we’re going to see a settlement. Pride and ego stand in the way” (“PTI,” ESPN, 8/12).

WHAT'S THE SCORE? THE MMQB's Andrew Brandt wrote Berman’s "direct and strident questioning" of Nash about evidence "had to be concerning to the NFL." Berman "definitely appeared to be more strident with the league as compared to his attitude toward the union." It is "too early to read the tea leaves on this, but the NFL should have some level of concern" (MMQB.SI.com, 8/12). In N.Y., Bart Hubbuch writes while it "didn’t always seem like it" during yesterday's hearing, Goodell and the league "still hold the upper hand in the messy Deflategate legal battle." Even if Berman "ultimately sides with Brady, the embattled Goodell and the NFL are still sitting pretty for at least three reasons: the benefit of time, much deeper pockets than Brady or the union and, most of all, the achingly slow wheels of the federal court system" (N.Y. POST, 8/13). ESPN BOSTON's Mike Reiss wrote it "truly is difficult to tell which side had the upper hand." If "forced to pick, it seemed like it was Brady, as Berman put the NFL on the defensive regarding direct evidence and the independence of the Wells report" (ESPNBOSTON.com, 8/12). In N.Y., Gary Myers writes, "I would score round one for Brady by a decision" (N.Y. DAILY NEWS, 8/13). ESPN’s Adam Schefter said, “For the judge to question the validity of the Wells Report yesterday the way he did, I don't see how you wouldn't view that as a victory for Tom Brady” (“Mike & Mike,” ESPN Radio, 8/13). FS1’s Mike Garafolo said, “There’s no question that Judge Berman was harder on the NFL than he was on the NFLPA” (“Fox Sports Live,” FS1, 8/12). ESPN’s Skip Bayless: “I would say that Tom Brady is leading Roger Goodell at halftime, 21-7” (“First Take,” ESPN2, 8/13). L.A. Times columnist Bill Plaschke: “No matter how the ruling ends up, the fact that the dialogue in the courtroom was all made public lets everyone see that the NFL is on shaky, shaky ground” (“Around The Horn,” ESPN, 8/12).

PENNY FOR YOUR THOUGHTS: YAHOO SPORTS' Frank Schwab wrote, "If you thought both sides have tried like heck to win the public war before, just wait to see if a settlement is reached." Monitoring the NFL's "leaks to various outlets to spin its side of the story will be worth the price of admission to this deflate-gate ride that never ends" (SPORTS.YAHOO.com, 8/12). ESPN’s Suzy Kolber said, "It seems like the players gave Commissioner Roger Goodell the power in the CBA and this is sort of like saying, ‘If we want to take the power back, then we’re going to take you to court in cases like this.’” But ESPN’s Chris Mortensen noted the NFLPA is “not saying that the CBA is unfair; what they’re saying is the application of things that were negotiated are not being adhered to.” ESPN legal analyst Roger Cossack said of the case, “This is the one they thought they could win.” (“NFL Insiders,” ESPN2, 8/12). ESPN Radio’s Mike Greenberg: “The NFL has a lot to lose in this, and Brady has nothing. The worst that will happen is that he will get suspended the four games that he's been suspended for and he’ll sort of come out of it a martyr. ... Will it affect the bottom line for the owners? No. Goodell's job standing? No. If you think that public humiliation is nothing to lose, then okay. To me, that's something" (“Mike & Mike,” ESPN Radio, 8/13). But ESPN’s Trey Wingo said, "The NFL loves this. They’re keeping themselves in the spotlight all year long” (“NFL Live,” ESPN, 8/12).

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