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Berman: "There is a bit of a quantum leap from the finding of Mr. Wells to the finding of Mr. Goodell." (from general awareness to scheme)
— Stephen Brown (@PPVSRB) August 19, 2015
Judge Richard Berman of the New York Courts has done everything but hand the victory to Tom Brady and the NFL Players Association.
While neither the NFL, nor the NFLPA, brought any new evidence to Wednesday's settlement and oral arguments hearing, it seems as if the judge is already leaning in a certain direction.
The NFL continues to argue that Roger Goodell is able to punish the New England Patriots quarterback under Article 46 of the Collective Bargaining Agreement (CBA), while the judge countered by questioning the fairness of the process.
The NFLPA kept making their points, that the NFL's claim, per The Wells Report, is about adjusting the PSI of a football by "one or two tenths."
Judge Berman has made public three main opinions:
1) The Wells Report doesn't have any concrete link to Tom Brady and football pressure during the AFC Championship game. Even Ted Wells, during Brady's appeal, refused to say that Brady directed any nefarious operation.
2) How did Roger Goodell come to decide that football inflation was more similar to steroid use than from an equipment violation? The equipment violation is covered by the player policies, while Judge Berman seemed to question the legality of conflating performance enhancing drugs to an inflated football.
3) The fact the NFL prevented Jeff Pash, who co-led the investigation, from testifying during Brady's appeal shows an unfair process that could violate the CBA.
All of these are in favor of the NFLPA and Tom Brady. Looking at how Judge Berman has reacted, it doesn't really make sense for Brady and company to even try to settle anymore. The NFL has continued to make just one argument ("The CBA allows it!") but Judge Berman has so many issues with the NFL's process- from the investigation, to the punishment, to the appeals- that he's not buying the NFL's argument.
In fact, he all-but-said that he has the potential to overturn the NFL's penalty.
Berman: "I don't understand the thinking to not allow Mr. Pash as a witness. Who else but Pash had the opportunity to edit the Wells Report?
— Stephen Brown (@PPVSRB) August 19, 2015
Berman: The NFL "cannot just conclude they cannot have a witness bc testimony would be cumulative."
— Stephen Brown (@PPVSRB) August 19, 2015
Berman: "I believe some arbitration awards have been vacated" because a witness was not allowed to be called without explanation.
— Stephen Brown (@PPVSRB) August 19, 2015
Berman: "There are some basic procedures of fairness that have to be followed.... You got to let someone make their case."
— Stephen Brown (@PPVSRB) August 19, 2015
Judge Berman clearly doesn't believe there was fairness in the process.
The NFLPA and Tom Brady clearly have all the momentum. The judge ordered both sides to continue settlement talks immediately after the hearing. Judge Berman also ordered another settlement hearing on August 31st that requires both Tom Brady and Roger Goodell to be in attendance. Judge Berman's goal to have this resolved before September 4th.
Here are some other highlights:
Judge also appeared receptive to Brady's claim that he simply wanted footballs to be at 12.5 PSI: "There's nothing wrong with that."
— Max Stendahl (@MaxLaw360) August 19, 2015
Berman: "There is a bit of a quantum leap from the finding of Mr. Wells to the finding of Mr. Goodell." (from general awareness to scheme)
— Stephen Brown (@PPVSRB) August 19, 2015
Most interesting moment to me was Berman saying Goodell may have violated rules by disallowing testimony of Pash at Brady's arb appeal.
— Matt Taibbi (@mtaibbi) August 19, 2015
Colts did better against Pats than the NFL did today against Jeff Kessler. Judge didn't sound impressed by league arguments in Brady case
— Dan Wetzel (@DanWetzel) August 19, 2015
As a legal observer: Today was more of a blowout than the AFC Title. Kessler all but dropped the mic at the end. #DeflateGate
— Bob McGovern (@BobMcGovernJr) August 19, 2015
Judge Berman may be pushing a settlement, but by signaling doubts about NFL's legal arguments, he emboldens Tom Brady to wait for decision.
— Michael McCann (@McCannSportsLaw) August 19, 2015