FOXBOROUGH, Mass. -- With Judge Richard M. Berman saying that he will rule Tuesday or Wednesday in NFL vs. New England Patriots quarterback Tom Brady, anticipation and tension fills the New England air. While there will likely be an appeal filed by the losing side, meaning this won't be an end point, it is still a key checkpoint.
There are many layers of legal analysis and opinion to dissect, but from a bottom-line perspective, it can be boiled down to this: How powerful is Article 46 of the collective bargaining agreement?
In football lingo, will Brady be sacked by the "46" defense?
Article 46 represents the backbone of the NFL's case against Brady, and it states that commissioner Roger Goodell has the authority to impose this level of discipline for what he deems a violation of the integrity or public confidence in the NFL.
Because of Article 46, some experts have viewed the NFL's position as iron-clad. Others aren't as convinced.
I admittedly have little background in law, but count me in the "others" category.
Part of that is based on Berman's aggressive questioning of the NFL in prior settlement discussions, even though analysts have cautioned from reading too much into that because it was a way for Berman to attempt to move the NFL toward a settlement. In the end, Gary Myers of the New York Daily News reported that the league wasn't willing to move far.
I recently discussed the case with a lawyer who made a point that resonated with me. The lawyer said the arbitration process under a collective bargaining agreement could be compared to signing a waiver at an amusement park. A patron might sign a waiver upon entering the park or a ride, but if the park is proven to be negligent, the terms of the waiver lose their meaning.
In this case, if the process under the collective bargaining agreement is proven to be inherently unfair, can Berman really confirm the arbitration decision?
It comes down to fairness, because a court wouldn't assume anyone bargained for an unfair process.
So one could argue that this is more about due process under the collective bargaining agreement, not necessarily the terms of the CBA itself (Article 46). Yes, the collective bargaining agreement governs absolutely, but due process can't be bargained away completely.
As for the due process of this case, the NFL didn't allow general counsel Jeff Pash -- who edited the Wells report -- to be available for questioning at Brady's appeal hearing. The NFL also claimed attorney client privilege to evidence in the Wells report, and as the NFL Players Association has argued, Brady was suspended under a provision that has never been applied to players before, with a never-used-before "general awareness" standard.
Berman, through the settlement talks, seemed particularly annoyed with all of the above (and then some).
But will that be enough for him to rule in Brady's favor?
The answer will tell us all we need to know about the power of Article 46.