clock menu more-arrow no yes

Filed under:

DeflateGate: Analyzing Judge Berman's Decision to Free Brady

New, comments

We're reviewing Judge Berman's ruling to understand how and why he sided with the New England Patriots quarterback.

Derick E. Hingle-USA TODAY Sports

In your Good News of the Day, Judge Richard Berman has sided with the NFL Players Association and New England Patriots quarterback Tom Brady by vacating the NFL's four game suspension. You can read his ruling here. I will be combing the document and providing the major details.

The judge didn't like the lack of connection between Tom Brady and ball deflation.

While the NFL argued that Brady was "generally aware" and then hyped up the charges "literally did it himself", the fact that multiple persons associated with the investigation (Ted Wells, Jeff Pash) acknowledged that there is no actual connection between the footballs and Brady didn't sit well with the judge.

The report wasn't "independent."

Judge Berman laughed every time he typed the word "independent" in his response because he either bolded the word, or put it in quotations. This is important because it comes down to the fairness of the arbitration hearing, which, ultimately, wasn't fair at all.

Judge Berman cites a case where an arbitration was overruled due to lack of fairness or due process as justification for overturning the ruling.

The NFL refused to provide the NFLPA documents for the same reason Brady didn't turn over his phone.

While the NFL decided to hammer Brady over his desire for privacy and the fact that the league had no rights to his phone records, on June 22nd, 2015, apparently Roger Goodell rejected the NFLPA's request for documentation. On what grounds?

"On the basis of my interpretation of the Collective Bargaining Agreement," Goodell wrote. "I deny the NFLPA's motion for discovery."

Translation: Well, I don't want you to have them, so you can't.

Judge Berman was even more displeased with this refusal because Mr. Pash's involvement with reviewing and editing the Wells Report was not yet known at this time- a clear example of the NFL burying their bias. Judge Berman went ahead and cited a case where an arbitration verdict was overruled due to the arbitrator refusing to hear evidence and showing "evident partiality".

The NFL didn't provide Tom Brady with adequate notice.

This is the crux of the argument. The NFL tried to penalize Brady under a rule under which he wasn't beholden. When the NFL was called out for their shenanigans, they kept trying to retool their ruling so Brady fell under something they could penalize him for.

It didn't work. It actually ticked off Judge Berman.

The Vincent Letter to Brady- unlike the Award- does not conclude that "Brady knew about, approved of, consented to, and provided inducements and rewards in support of a scheme by which, with Mr. Jastremski's support, Mr. McNally tampered with the game balls." Compare Vincent Letter to Brady with Award at 10. Nor does the Vincent Letter to Brady- unlike the Award - say that Brady "participated in a scheme to tamper with game balls after they had been approved by the game officials for use in the AFC Championship Game .... " Compare Vincent Letter to Brady with Award at 13. (Page 26)

Judge Berman didn't question the Wells Report findings.

Per prior precedence, the court is generally expected to treat the findings of the arbitrator as fact. So even though the Wells Report was clearly biased, and the science was clearly faulty, it was not up to Judge Berman to question it unless he calls the grass purple. His hands were tied and he had to find a different way to prove the NFL was out of bounds.

These are the three major bullet points of the case.

1) The NFL didn't provide adequate notice of potential discipline. Judge Berman highlights the NFL's inability to clarify which of Brady's four-games was for lack of cooperation, and which were for alleged ball deflation. The fact that the league itself couldn't state the specific discipline meant that the ruling was arbitrary and it is impossible for the players to be notified.

Additionally, Ted Wells stated multiple times that Brady wouldn't be punished for lack of cooperation. That's, like, the opposite of notice.

2) The NFL refused to let the NFLPA question Co-Lead Investigator, and document Editor, Jeff Pash. By withholding Pash, the arbitration is considered fundamentally unfair because "each of the parties [must have] an adequate opportunity to present its evidence and argument." The Court's acknowledgement that Pash edited the report supports the need for Pash to at least be questioned by the NFLPA.

Goodell's reason to withhold Pash was that the NFL's Legal Counsel's testimony was considered "cumulative." The fact that Goodell doesn't go on to explain why the testimony would be considered cumulative is "problematic to the Court." Ted Wells wasn't able to explain what Pash's edits were, which immediately shows that Pash's testimony would not have been cumulative.

3) The NFL refused to allow the NFLPA to see the notes procured from the Ted Wells investigation. The fact that the NFL hired Ted Wells and his colleagues to both run the investigation and act as their legal counsel during the arbitration implies a fundamentally unfair process, especially because the NFL refused to share documents with the NFLPA.

In other words, the NFLPA was not allowed to review documents from which Tom Brady would be questioned. The NFL was able to use them to their advantage, implying clear bias in the process.

Comparing deflation to steroids is laughable.

Judge Berman laughs at Goodell's attempt to compare deflation with steroids, highlighting the many tests and policies that are in place for performance enhancing drug tests. Judge Berman writes, "none of which has anything to do with Brady's conduct and/or discipline. [Goodell's ] Award offers no scientific, empirical, or historical evidence of any comparability between Brady's alleged offense and steroid use."

Earlier in the document, Judge Berman makes a point of noting that Brady's statistics improved with the football change at halftime, likely as a dig that Brady's performance was in no way enhanced.

Judge Berman didn't even bother with all of the NFLPA's complaints against the NFL.

The Judge only had to rule in favor of the NFLPA on one account to vacate Goodell's arbitration award, so he didn't even look at:

1) Goodell delegating his authority to Troy Vincent, making Goodell evidently partial.

2) Goodell trumping up Brady's charges post-appeal, which he isn't allowed to do.

3) Goodell offering his public support of the Wells Report implies partiality.

The Patriots likely won't get their draft picks back.

The rule that Brady wasn't provided, but was punished for, does apply to the team. So the fact that the New England Patriots withheld Jim McNally from further questioning constitutes a violation of the rule. The Patriots were expected to support the entire investigation and, by the letter of the rule, they didn't completely follow through.

Additionally, while there's no proof that the footballs were actually deflated, the league is able to penalize the Patriots for that belief. Judges can't question the facts found in the arbitration, so a judge wouldn't be able to question the validity of Ted Wells' findings. It's unfair, yes, but that's why Robert Kraft backed down- there are no angles for the franchise to fight back.

Tom Brady will play week 1 against the Steelers.

We're on to Pittsburgh.