FOXBOROUGH, Mass. — Seven months. At least $3 million spent on lawyers — and probably twice that or more. Reports and responses and arbitration and appeals and even a college class in New England called “Deflategate.”
And it’s not over yet.
U.S. District Judge Richard M. Berman erased Tom Brady’s four-game suspension on Thursday, handing the four-time Super Bowl champion another victory in a career already full of them. The NFL promptly appealed.
So settle in for more talk about deflated footballs and perhaps years of fallout from Commissioner Roger Goodell’s botched attempt to punish the New England Patriots and their quarterback for using improperly inflated footballs in the AFC title game in January.
(Or, maybe they didn’t.)
Some questions and answers about the latest developments:
Q: Why did Brady win?
A: Judge Berman said Goodell failed to follow the processes set out in the collective bargaining agreement when he personally presided over the appeal of Brady’s suspension. Among the reasons:
—The league didn’t warn Brady — the legal term is “notice” — that he could be suspended for being “at least generally aware” of an equipment violation. The judge also said the “general awareness” standard was a new one that wasn’t supported by the CBA or the precedent known as “the law of the shop.”
— Brady’s lawyers weren’t allowed to question NFL lawyer Jeff Pash, who edited the report by NFL-contracted investigator Ted Wells. (In fact, Berman borrowed the union’s language in referring to it as the “Pash/Wells Investigation.”) Brady was also denied access to the investigative files. Failure to provide access to a witness or documents meant Brady couldn’t have a fair hearing.
“NFL precedent demonstrates that … players must be afforded the opportunity to confront their investigators,” Berman wrote.
Q: Does this mean Brady is innocent?
A: Not necessarily. Berman’s decision clears the way for Brady to play in the Patriots’ season opener against Pittsburgh next Thursday and almost certainly the entire 2015 season. The Patriots will go ahead and unveil their fourth Super Bowl banner before the game.
But it doesn’t clear Brady’s name.
Berman threw out the suspensions without deciding whether there was enough evidence to conclude that Brady took part in ball-tampering. But it’s clear the judge had his doubts: In court, he grilled the league about the lack of evidence, and his ruling quoted the exchange in which the NFL lawyers conceded, “No, there is not such direct evidence.”
Q: The Patriots were fined $1 million and two draft picks. Do they get that back?
A: Owner Robert Kraft had promised not to contest the team’s penalties, but he later said he regretted that. Kraft issued a statement on Thursday saying, “Now, we can return our focus to the game on the field.” Patriots spokesman Stacey James did not respond to an email asking if the team would contest its penalties.
Q: Can we stop talking about this now? Please?
A: In addition to the commissioner and his lawyers, the big losers on Thursday were the fans experiencing “Deflategate” fatigue. According to Daniel Wallach, a sports litigator at the Florida law firm of Becker and Poliakoff, the median duration of an appeal in the 2nd U.S. Circuit Court of Appeals is 10 months.
But Wallach also said that only about 7.5 percent of private civil appeals are reversed.
So it’s just a matter of time.
“Tom Brady will not serve a suspension this year or next year. It’s over,” Wallach said. “This decision is not getting reversed by the 2nd Circuit.”
Q: What happens next time Goodell tries to punish a player?
A: Berman said Goodell cannot dispense “his own brand of industrial justice.” Expect the commissioner to tailor future decisions in a way that steers clear of the judge’s specific objections.
But the commissioner has repeatedly failed to make his penalties stick — this is at least his fifth punishment that has been reduced or overturned on appeal, a list that includes Ray Rice, Adrian Peterson, Greg Hardy and the New Orleans Saints bounties.
“This is part of an extended losing streak,” said Gabe Feldman, a Tulane Law School professor and the director of the Sports Law Program there. “So it’s hard to predict whether this will lead to significant change.”
Q: When is this all going to end?
A: The real clash comes in early 2021 after the union contract expires.
The players gave up the right to a neutral arbitrator for more tangible benefits when they negotiated the current CBA in 2011. Over the next six seasons, the owners and players will each have to decide how hard to fight over whether the commissioner’s powers should be further diminished.
The expense and embarrassment of its repeated losses give the NFL a good reason to trade this already tainted power for something more tangible.
But sports owners do not surrender power lightly.
“There’s a reason they fought for it. There will have to be a reason for them to give it up,” Feldman said.
“This has always been about more than deflated footballs. It’s about the role of the commissioner in disciplinary matters, and that doesn’t change just because Tom Brady’s back on the field.”DeflategateNew England PatriotsNFLRoger GoodellTom Brady