If judges' questions are any indication, NFL may win appeal

NFL seems to do well during cross-examination (2:37)

ESPN's Sal Paolantonio and Andrew Brandt give their takes on how a three-judge panel cross-examined Tom Brady's attorney, Jeffrey Kessler, intensely during the NFL's Deflategate appeal and how the judges might not find Brady's defense too convincing. (2:37)

NEW YORK -- High-powered and successful attorney Jeff Kessler -- an all-pro in the legal community if there ever was one -- never saw the blindside hit coming.

But less than two seconds after he had just completed the traditional "May it please the court" opening line that is made by attorneys as they begin to make their arguments, a judge tossed Kessler aside.

How is it, Judge Denny Chin of the U.S. Second Circuit Court of Appeals asked, Kessler could assert in one court that the NFL's uniform and equipment policy did not apply to the deflation of footballs by the New England Patriots and quarterback Tom Brady, but argue in briefs filed with Chin's appellate court just the opposite?

Chin's query came before Kessler completed even a single sentence of the argument he had prepared in support of a triumph he engineered in a lower court last summer. It began a series of questions that kept Kessler on the defensive throughout his entire 34-minute presentation to the court Thursday.

That basic question and those that quickly followed from two other judges provided a strong indication that the appellate court is likely to reverse a lower court ruling that said NFL commissioner Roger Goodell was wrong when he suspended Brady for four games in the Deflategate saga.

The uniform-equipment policy question is critical to the outcome of the appeal. If the policy applies to deflated footballs, Kessler and the NFLPA insist that a violation of the policy is limited to a fine of just $5,512 from Goodell and no suspension. If the policy does not apply, then the commissioner is able to use his authority specified in the labor agreement between the owners and players to suspend Brady.

In their briefs to the appeals court, NFL attorneys highlighted the Kessler-uniform policy flip-flop and explained that the policy's designated fines are "minimums" and "other forms of discipline including higher fines and suspensions may also be imposed."

The clear language of the policy indicates that it applies to things like the color of shoes, the proper wearing of uniform socks and the tucking in of jerseys. The word "football" does not appear anywhere in the detailed policy, and a sketch used to describe the policy's requirements does not include a football. The NFL's position is so strong that at one point in the arguments on Thursday afternoon, Judge Barrington Parker told Kessler his explanations were "hypertechnical."

Responding to Chin's opening question, Kessler suggested that there were three reasons why the suggestion of a flip-flop was incorrect. First, Kessler said, the league distorted what he said at the arbitration hearing. Before he could offer any specifics on the distortion, Chin quoted Kessler's statement at the arbitration: "We don't believe the uniform policy applies."

Looking up from his notes and directly at Kessler, Chin concluded, "That seems pretty clear." Kessler never made it to his remaining two reasons.

The best that Kessler could do after that was to suggest to the judges, "Using a football term, this was 'misdirection' by the league."

Kessler's travails continued when both Parker and Chin attacked Brady's obstruction of the Wells investigation and his destruction of a cell phone that may have had important evidence. Neither judge was happy with Kessler's assertion that Brady did not have "notice" that a failure to cooperate in the league's investigation could result in punishment.

Referring to Brady's "obstruction" of the investigation and Brady's destruction of his cell phone, Parker asked, "Couldn't the commissioner suspend Brady for that conduct alone?"

In response, Kessler said that when the alleged obstruction and destruction developed, the league should have opened a new investigation with another discipline decision and another arbitration.

Parker was incredulous, saying to Kessler, "I have difficulty following that. You want a 'start over.' You want the first case to come to a full stop and then start anew on a new investigation."

In frustration and exasperation, Parker then asked Kessler, "Do you think the commissioner was out to get Tom Brady, one of the most celebrated players in the game?"

In their final series of questions to Kessler, the judges questioned his reliance on Brady's sworn testimony in the arbitration hearing. Parker thought Brady's explanation of what happened was "totally incredible." And Chin said there was "compelling evidence that Brady tampered with the footballs."

For Kessler and Brady to prevail in this appeal, the appellate judges must believe at least one of the arguments that Kessler offered: the uniform policy applies; Brady was truthful in his explanation of what happened; the arbitration procedure was flawed and did not provide proper notice to Brady of the charges against him; or, Brady is entitled to a new hearing on the obstruction and destruction of evidence charges.

In the hearing Thursday, Chin, Parker and fellow judge Robert Katzmann did not show any acceptance of those arguments.

Sensing that things were moving in the NFL's direction, the league's lead attorney, Paul Clement, pounced in a rebuttal argument that he offered after the judges finished with Kessler.

"Labor arbitrations are supposed to be expeditious," he reminded the court. To bring this labor arbitration to an end, he suggested, the judges should reverse the previous ruling "without a remand." That means the league wants the high court to reverse lower court Judge Richard Berman's decision without giving him a chance to correct his errors.

"This should not hang over the league for another season," Clement said. "You can end it right now."

It is entirely possible that Clement and the league will see this case end in the expected fashion (that Brady's suspension is justified) in the next three or four months.