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DeflateGate: Analysis of Yesterday's Appeal Hearing; Tom Brady vs. NFL Seemingly Far From Over

Let's take a quick look at what happened during yesterday's appeal session and what it means.

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On January 18, 2015, Deflategate was born when NFL officials – unaware of how air pressure levels can change due to the natural environment – found out that the New England Patriots' played with under inflated footballs in the AFC Championship Game.

Since that day, we have seen two more Championship games played, we saw two new Super Bowl winners crowned, and we saw Malcolm Butler become a household name. What we did not see is an end to the entire mess that Deflategate has been from the start – something that possibly will not change soon judging by yesterday's appeal hearing in New York City's Court of Appeals.

But before we jump in to analyze why, let's quickly recap why Deflategate is now in front of a second circuit federal appeals court: after the NFL suspended Tom Brady for his alleged role in Deflategate and did not alter the punishment after a hearing in front of arbitrator/NFL commissioner Roger Goodell, the league counsel sought legal action to confirm Goodell's decision. The plan backfired, as District Judge Richard Berman did not confirm it and instead vacated Brady's suspension. This led to the NFL's appeal, which was heard yesterday.

Here are six key takeaways from this hearing.

The NFL's lawyer was grilled.

Appellate Judges Robert Katzmann, Denny Chin and Barrington Parker asked tough questions.

First, it was NFL attorney Paul Clement's turn, whose opening statement was cut short by Katzmann, who wondered if the league changed its basis for the four-game suspension between the original sentencing and Brady's appeal hearing, something Brady was never notified about. The notification as well as the "draconian penalty", as Parker called it, were also the focus of the other two judges; as was Roger Goodell's role as, in Parker's words, "judge, jury and [...] executioner".

Clement argued mostly on the basis of what the NFL thinks is the appropriate punishment according to the bargained rules, which give Goodell the power to act and rule the way he feels is "best for the sport". The NFL's attorney often referred not only to the rules but also to the "independent" investigation by Ted Wells (Brady's contact with Jim Jastremski, gifts as possible inducements) to introduce factual findings to a hearing about the practice and interpretation of the law.

Brady's lawyer was grilled.

Next up was Jeffrey Kessler, attorney for Tom Brady and the NFL Players Association. As they have been when Clement was in front of them, the three judges were skeptical throughout the argumentation, while asking tough questions.

Kessler's turn started with argumentations with Chin and Parker about under which rule Brady was and/or should have been punished. Parker in particular was very critical and seemingly tried to test Kessler's arguments by bringing up several hypothetical scenarios. What if Brady has been punished for conduct detrimental to the game – as result of him being untruthful – instead of an equipment violation? What if Brady bribed equipment personnel as part of the plot? Parker also focused on Brady's, allegedly purposefully, destroyed cell phone and the quarterback's explanation which made "no sense whatsoever" to the judge.

Kessler, as usual, was animated throughout the entire hearing but it seemed that his arguments often failed to convince especially Parker. Brady's attorney also touched the main point brought forward during Clement's turn: the rule under which Brady was suspended. According to Kessler, a fine would have been the maximum punishment. Kessler called the NFL's argumentation misdirecting and the notion of the destroyed cell phone an attempt at misleading.

Judge Chin does not care about the Ideal Gas Law.

During Kessler's argumentation, Judge Chin made a point that led Sports Illustrated's legal expert Michael McCann to believe he would rule against Brady. According to Chin, "the evidence of the ball tampering is compelling, if not overwhelming". While the initial findings of the Wells Report made you believe that this was the case, the science behind the investigation has since been disproven various times.

This could be a critical point but the appeal hearing is not about facts, no matter if right or wrong. The question is whether or not the punishment handed down by the NFL – which is based on Wells' report and not on subsequent findings – is in fact in accordance with the bargained set of rules.

The NFL could have the upper hand...

In order to win the appeal, one of the sides needs a majority of judges' votes, which means that 2-1 is sufficient to either overturn or confirm Judge Berman's ruling. According to various legal experts, it seems as if the NFL could have the lead, with particularly Parker being tough on the points raised by Kessler. While Katzmann mostly seemed to side with the NFLPA, Chin seemingly favored the NFL's side but overall could be closer to the middle. He could very well be the deciding judge.

...but Brady is still in a good position.

To speak in football terms, the Patriots' quarterback entered the appeal hearing up by a field goal, courtesy of Judge Berman's ruling. This rings particularly true when considering that Berman vacated Brady's four-game suspension on those grounds: inadequate notice, denial to examine one of the co-investigators – NFL counsel Jeff Pash – during the initial appeal hearing, and denial to equally access investigative files. Most of yesterday's hearing was about the first of the three points, while the other two were mostly left untouched.

While two of the three judges might have given the impression of favoring the NFL, they still have to consider other factors as well. After all, Berman's decision favoring Brady as well as the briefs filed for the appeal hearing and hundreds of pages of legal documents also have to be put into consideration before a definitive ruling can be made.

What lies ahead?

Due to the common nature of appeal hearings, the final decision by the three appellate judges is still months away. Until then, we will not know what the next step of action is for either party, as it depends on what the court rules. Katzmann, Chin and Parker, for example, could rule that Berman re-hears the case.

If that is the case, Berman will probably rule on one of the other three points raised by the NFLPA prior to the first federal hearing: Brady becoming the central figure in a ball deflation scheme (something not mentioned in the Wells Report), Goodell being "locked in" on the findings of Ted Wells, and Goodell illegally delegating authority to Troy Vincent. Judge Berman's original ruling focused only one of the NFLPA's four points – inadequacy of notice and discovery – as he deemed it enough to overturn the NFL's motion to confirm the arbitration award.

However, they could also rule that the district judge's decision is either confirmed or reversed; Brady's suspension would then either remain lifted or once again be put into place. No matter what happens, the losing party could petition yet another hearing by three different appellate judges.


Overall, it is tough to predict the outcome after one hour-long hearing. Two of the three judges might have given the impression of leaning towards the NFL's point of view but that does not mean they will rule this way – after all, the hearing is only one part of the decision-making process, and a tool to give the judges a clearer view of the issue they have been assigned to deal with.

Therefore, there is only one thing we know right now: Deflategate is far from over.