NEW YORK -- A federal judge put the NFL and the players' union on the defensive Wednesday during a hearing over Tom Brady's four-game suspension, demanding to know what evidence directly linked the New England Patriots quarterback to deflating footballs and asking why they would have been deflated without Brady's knowledge.
Judge Richard M. Berman in Manhattan repeatedly asked NFL lawyer Daniel L. Nash for "direct evidence that implicates Mr. Brady" as he gave both sides a chance to state their case in the first hearing before him while at times belittling the drama of the controversy.
Nash responded there was "considerable evidence Mr. Brady clearly knew about this," including records of text messages and phone calls between the quarterback and one of two Patriots employees implicated in the scandal known as "Deflategate." But he also said there was no "smoking gun" showing Brady had direct knowledge that the balls were deflated for the first half of the Patriots' 45-7 defeat of the Indianapolis Colts in the Jan. 18 AFC championship.
The public portion of the hearing ended at 12:45 p.m. ET after about 1 hour, 20 minutes, and Berman then convened individually with each side in his robing room to continue settlement discussions in private. The talks continued more than four hours until about 5 p.m. Afterward, NFL commissioner Roger Goodell, Brady and contingents of lawyers for the league and players' union left federal court within minutes of each other.
Goodell walked out of the courthouse about 10 minutes after Brady exited, as seen in the picture below tweeted by ESPN NFL Insider Adam Schefter, with some spectators shouting "cheater, cheater" toward the Super Bowl MVP.
Tom Brady now leaving Courthouse.... pic.twitter.com/1bC61ncMfD— Adam Schefter (@AdamSchefter) August 12, 2015
Brady and Goodell each smiled as they left separately and there was no immediate word on the status of talks.
DeMaurice Smith, executive director of the NFLPA, told reporters, "It was a productive day."
The NFL sued two weeks ago asking for Berman to declare that its punishment of Brady was properly carried out. The players' union countersued, asking him to nullify the suspension.
"Turns out, Mr. Brady did better with higher inflated balls than underinflated balls. You might say he got no competitive advantage." Judge Richard M. Berman
Berman called it "ironic" that Brady's statistics were better in the second half of the Patriots' AFC title game victory than in the first half, when the balls were found to have been underinflated.
"Turns out, Mr. Brady did better with higher inflated balls than underinflated balls," the judge said. "You might say he got no competitive advantage."
At one point, the judge also seemed to try to defuse the controversy, saying: "This 'Deflategate.' I'm not sure where the 'gate' comes from."
When the union got its chance to argue, the judge asked attorney Jeffrey L. Kessler why two Patriots employees would deflate balls without Brady's knowledge.
Kessler said the union does not believe the balls were deflated, but, if they were, the employees believed it would help their quarterback.
Berman also asked Kessler why Brady did not cooperate with the "Deflategate" investigation, according to federal court reporter Stephen Brown's tweet-by-tweet hearing summary. Kessler acknowledged Brady didn't cooperate out of privacy concerns and said Brady "should have conducted himself differently with Wells."
The judge also questioned why Brady destroyed his cellphone in the midst of the inquiry -- a move that the league argues was further proof of his deception. Kessler claimed that the quarterback got rid of the phone on the advice of his agent to protect his privacy but had otherwise cooperated with the inquiry.
However, in hindsight, "You're right, it could have been done a different way," the lawyer said of the phone.
Both sides are scheduled to return to court next week.
Brady and Goodell didn't speak during the hearing, except to introduce themselves to Berman. Brady, his head lowered, looked dour throughout. Immediately afterward, Brady smiled slightly as he signed sketches for two court artists.
The sketches done by one artist, Jane Rosenberg, became a story of their own for not portraying Brady particularly well.
"At least they can figure out which one is Tom Brady," Rosenberg said, according to The Boston Globe. "That's good, whether he looks good or bad. It's not just a stick figure of a nobody."
Rosenberg added that Brady spent most of the day's proceedings looking down at his phone, according to the newspaper.
After the formal courtroom proceedings ended, Berman began meeting individually with each side to continue settlement discussions in private.
At the hearing's start, Berman said he found "varying strengths to both sides here" and had not made up his mind as to how he might rule if the sides do not settle.
Goodell and Brady, along with their lawyers, met separately with the judge before the start of their hearing in Manhattan federal court.
They arrived more than an hour before the start of the morning hearing. Goodell was greeted by a smattering of boos as he walked inside. Four minutes later, Brady arrived flanked by four security guards. Both men went through a security sweep like everyone else going to court.
Dozens of fans and journalists waited for two of the NFL's most famous faces at the front entrance of the courthouse, including some fans wearing deflated football hats they were hoping to sell.
Brady's settlement hearing came after Goodell ruled to uphold his four-game suspension on July 28. The NFL moved quickly to have the suspension confirmed in U.S. District Court in New York. Brady had hoped to have the case heard in Minnesota, but because the NFL filed first in New York, the case landed there and was assigned randomly to Berman.
Berman, 71, ordered the sides to have settlement discussions multiple times, most recently calling for more "good-faith" discussions on Tuesday. He called the sides together at 10:30 a.m. ET on Wednesday to be briefed on any progress in advance of the 11 a.m. scheduled hearing.
Sources told ESPN's Chris Mortensen 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.
The NFL had no comment on the report Wednesday.
If Brady had accepted the findings of the Wells report, he would be contradicting his appeal testimony, under oath, in front of Goodell on June 23.
Brady remains firm on his settlement terms: He will accept a fine, but no suspension, and will not admit guilt in the matter, sources say.
The NFL commissioned attorney Ted Wells to investigate the Patriots' use of underinflated footballs in the AFC Championship Game against the Indianapolis Colts on Jan. 18. The report was released May 6 and concluded that it was "more probable than not" that Patriots personnel deliberately deflated footballs during the game, and that Brady was probably "at least generally aware" of the rules violations.
Goodell suspended Brady for the first four games of the 2015 season for his role in the incident, which Goodell said violated the integrity of the game.
In a 15-page brief filed to Berman on Aug. 7 stating the NFL's position, the league said Brady was more than "at least generally aware" of the rules violations, writing that Brady was suspended for having "approved of, consented to, and provided inducements in support of" a scheme to tamper with game footballs. The league also wrote that Brady "willfully obstructed the subsequent investigation."
Brady and the NFL Players Association said in its briefs filed to Berman that Goodell doesn't have the authority to suspend Brady for such a violation (there is nothing in the collective bargaining agreement that allows a player to be suspended for underinflating footballs), while also declaring the investigation and process that led to Brady's suspension was unfair, among other things.
The NFL countered by saying that Article 46 of the collective bargaining agreement gives the commissioner the authority to suspend those he deems violated the integrity of or public confidence in the game of football. The league also said there is nothing in the collective bargaining agreement that ensures Brady must have an "independent" investigation.
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 Pittsburgh Steelers on Sept. 10.
Information from ESPN.com's Mike Reiss and The Associated Press was used in this report.