The latest news nugget out of The Court of Deflategate -- that the judge hearing the dispute between Tom Brady and the NFL asked the league to bring a team owner into the case to settle it -- adds yet another seemingly crazy twist to the whole saga.
Consider what's happened so far in federal district Judge Richard Berman's courtroom:
First, he actually decided to take the case on. That's rare enough when dueling parties have previously contractually agreed to allow disputes to be handled by arbitration. But rather than punting the case immediately, as I and other legal analysts figured would happen, Berman has tolerated multiple briefings and hearings, with more to come.
Second, he told Brady, his union and the NFL to settle the case. In other words, "I'm happy to see you, but figure it out on your own."
Third, he actually suggested to both parties that a team owner -- a competitor to the Patriots, no less -- be brought in to help settle things.
What the heck is going on?
Simply put, he's trying everything he can to get this thing resolved out of court and is not afraid to look bad -- or sometimes even one-sided -- by doing so.
In two hearings, Berman has questioned numerous aspects of the 20-page page decision that NFL commissioner Roger Goodell issued on July 28 that led to Brady's four-game suspension. Berman suggested, for example, that Goodell made a "quantum leap" from Brady being "generally aware" of the deflation of game balls suggested in the Wells Report to Goodell's conclusion that Brady "knew about, approved of, consented to and provided inducements in support" of the deflation.
While Brady and his supporters no doubt find some comfort in Berman's attack on Goodell's reasoning, they shouldn't try to read into Berman's statements and questions from the bench. Why? Because the judge is not leaning in Brady's direction. He has been, instead, doing what hundreds of judges do in American courtrooms each day: trying to push the side with the stronger legal position into consideration of a settlement.
There is nothing subtle or particularly sophisticated about what Berman is doing. Most judges prefer settlements over trials. A trial consumes days and weeks of judicial time, and the judge could face an embarrassing reversal by a higher court on any decision the jurist makes in a trial. To save time and to avoid reversals, judges like Berman use their leverage to try to push litigants into settlements, something Berman has been doing for more than three weeks.
In this case, recognizing that the NFL has convincing evidence and significant legal precedents on its side, Berman knows the only way he can produce a settlement is to show the league that there is a possibility it could lose a case that it should win. That is why he devoted most of a hearing Wednesday to picking apart the Goodell opinion and the league's legal position.
The strength of the NFL position in the litigation is indisputable. It is based on powerful legal precedents that severely limit a federal judge's review of an arbitration decision and on the convincing evidence gathered for the Wells report and described in surprisingly powerful terms in Goodell's decision.
The limits on a federal judge's authority over an arbitration decision are well established. Brady and the union lawyers want Berman to reconsider everything in Goodell's 20-page opinion. The legal term for the Brady demand is a hearing "de novo." It means a do-over, and a do-over is exactly what Berman is not permitted to do under American law.
NFL attorneys needed only nine pages in a brief they filed this past Friday to describe the unquestioned legal doctrine that limits what Berman can do. It may be the shortest brief the NFL has filed in its massive history of litigation.
The rule that judges should not tamper with an arbitrator's decision is so well recognized and obvious that a U.S. Supreme Court opinion involving Steve Garvey was issued in 2001 as a per curiam decision. That means the ruling was not only unanimous, it should have been clear to all concerned that there was no reason for the case to be considered at the high court level.
Garvey had gone to federal court to challenge an arbitrator's adverse ruling in his claim for $3 million in damages he thought he suffered during the MLB collusion conspiracy of 1985-87. He wanted the federal courts to reconsider the arbitrator's ruling.
The nation's highest court ruled that even when an arbitrator's decision was "improvident or even silly," it does "not provide a basis for a court to refuse to enforce the award." Even when the federal judge considering the arbitration award is "convinced that the arbitrator committed serious error, it does not suffice to overturn [the arbitrator's] decision," the court ruled.
To make sure everyone understood its ruling, the Supreme Court went so far as to say in the Garvey decision that even when the arbitrator's "procedural aberrations rise to the level of affirmative misconduct," a federal judge may not "interfere with an arbitrator's decision that the parties [players and owners] bargained for."
Garvey walked away with nothing.
In the current NFL case, other legal precedents indicate that Goodell, as the arbitrator established in the NFL collective bargaining agreement, has the power to determine what constitutes conduct detrimental to the league, whether there was a violation, and what the appropriate punishment is. It's obvious, and it's simple. Goodell has the authority to answer all of the questions in the dispute, and a federal judge has no authority to reconsider his answers.
The weakness of Brady's legal position is clear in any consideration of the arguments offered by Brady, the union, and the union lawyers. Jeffrey Kessler and his team of lawyers from the firm of Winston and Strawn are the most resourceful advocates I have seen in 25 years of reporting on legal issues in sports. The best they have come up with in their briefs and arguments in support of Brady are vague assertions of "fundamental fairness" and the "evident partiality" of Goodell as the arbitrator.
The problem with these assertions is that the NFLPA agreed in collective bargaining that Goodell would be the final authority in conduct detrimental cases, and, as the arbitrator, Goodell decides on all issues of fairness. They agreed to a partial arbitrator, and they agreed to his notions of fairness.
The Brady legal team also claims that Brady had no "notice" that deflating game balls or that lying about it would be subject to punishment. The now-famous provisions of Article 46 of the collective bargaining agreement give the commissioner authority to impose discipline for any conduct that is "detrimental to the integrity of, or public confidence in, the game of professional football." It is difficult, if not impossible, to think that Brady could not have known that deflating game balls below the minimum required pressure did not affect the integrity of the competition. His awkward and unsuccessful attempt to cover up what happened show that he had "notice" that there would be a problem.
Earlier in the litigation, Brady's union attorneys filed more than 4,000 pages of exhibits, documents and transcripts in an effort to show some strength in their position. This kind of document dump is never a sign of strength. It is an admission that there is nothing conclusive or dispositive in their material, no smoking gun that supports their position.
In their final brief for Berman, the union lawyers resorted to overstatement and hyperbole in their effort to conceal a weak position. The Goodell opinion, they said, is nothing but a "propaganda piece" and part of a "smear campaign" directed at Brady. It is not a sign of strength when union lawyers try to convince a federal judge that the commissioner of the most successful sports league in the world would deliberately slander and smear one of its most recognizable and greatest players.
It all seems very desperate, but Brady and Pats fans shouldn't entirely lose hope. Berman has not ruled yet, has called Brady and Goodell back to court on Aug. 31 and could find a way to rule for Brady. It has happened previously in litigation involving celebrity athletes.
But even if that happens, it's unlikely Berman's decision would stand.
Shira Scheindlin, another federal judge in the same building where Berman is considering the Brady dispute, ruled in favor of Maurice Clarett in 2004, allowing him to enter the NFL draft even though legal precedents supported the collective bargaining position that a player was not eligible for the draft until his college class has completed its third year.
Relying on the negotiated provisions for the draft in the union agreement, the U.S. Court of Appeals for the 2nd Circuit quickly reversed Scheindlin's ruling. The opinion upholding the NFL's position was written by Sonia Sotomayor, who is now a U.S. Supreme Court member.
Berman's varied tactics may yet get Brady and the league to a settlement. But if not, whether it's a decision by Berman in the next few weeks or a decision in the higher court in the next few months, the NFL is going to end up the winner in the Brady dispute.