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DeflateGate: Robert Kraft puts money where his mouth is, with Patriots potentially on hook for the bill

The Patriots have another major financial reason to want Tom Brady to win in court.

New England Patriots owner Robert Kraft doesn't have the ability to sue the NFL itself as all owners agree to "observe all decisions of the Commissioner of the League in all matters within his jurisdiction," [3.11(A)] which includes penalties for what the Commissioner deems to be "conduct detrimental to the league."

But Kraft and company have finally entered the legal arena, through a method that is far less likely to result in being stripped of his franchise.

The Patriots filed an amicus brief with the Second Circuit, in support of quarterback Tom Brady receiving another hearing, with the possibility of yet another reversal of his suspension.

This filing does not come lightly, either. The aforementioned section 3.11 regards a franchise's obligations towards the league, including whether or not a team can file a lawsuit in response to a ruling by the Commissioner.

3.11 Membership Covenants and Obligations

Each member club, and each and all of the owners...assumes and agrees to be bound by the following obligations of membership in the League:

(C) the fullest extent permitted by law, release and indemnify the Commissioner, the League...and every holder of an interest therein, from and against any and all claims, demands, suits, or other proceedings, whether for damages or reason of any action taken or not taken by...the League or any committee thereof.

See 1997 Resolution FC-6 (reimbursement of legal fees and expenses), App., p. 1997-3

This states that Patriots release and protect the league from legal actions, even those that directly result from "any action taken" by NFL commissioner Roger Goodell.

The referenced 1997 Resolution, regarding legal fees, paint the Patriots submission of an amicus brief in a different light.

1997 Resolution FC-6

"If any member club...initiates, joins, has a direct, football-related financial interest in, or offers substantial assistance to any lawsuit or other legal, regulatory, or administrative proceeding ("Claim") against the League...each Claiming Party shall be obligated jointly and severally to reimburse the League....for all of such party's legal fees, litigation expenses, and costs incurred in such Claim if the Claiming Party (or the third party that received substantial assistance from the Claiming Party, or in whose Claim the Claiming Party has a direct, football-related financial Interest) does not obtain a judgment on the merits which substantially achieves, in substance and amount, the remedy sought;

"The Commissioner...shall determine the amount of said legal fees, litigation expenses, and costs, and such determination shall be final and binding."

In other words, if a franchise joins a lawsuit against the league in any capacity, then said franchise is on the hook for the financial fallout if the NFL wins the case- and Goodell will be responsible for determining the final bill.

The Patriots explicitly state in their motion to file brief, "the Patriots have a strong interest in the outcome of this appeal, as the punishment currently imposed upon Mr. Brady will leave the team without its All-Pro starting quarterback for the first 25% of the 2016 regular season. Mr. Brady has led the Patriots to four Super Bowl wins and thirteen division titles. To state the obvious, the Patriots will be severely adversely affected by the loss of Mr. Brady for four of the Patriots' sixteen regular season games."

It would make sense that the Patriots both offered "substantial assistance" and have a "direct, football-related financial interest" in this case. In a case where the NFL is fighting for power in the Collective Bargaining Agreement (CBA), having a team side with the Players Association (NFLPA) in calling NFL commissioner Roger Goodell's appeals system "a fundamentally unfair process" is absolutely helping the NFLPA.

Also, no one can deny that the Patriots would be in a better financial state (playoffs, anyone?) with Brady at the helm for four more games.

Sports Illustrated's Michael McCann notes that the Patriots ensured they didn't cross any lines in their language, and that New England only wants Brady to have another hearing- not that they want the NFL to lose the case (although the implication is apparent).

Of course, it's up to Goodell to determine whether or not the Patriots should be considered "conduct detrimental" to the league, since "no member...of the League shall publicly criticize...any football official employed by the League," and any public criticism would be considered "conduct detrimental" per 9.1(C)(4) of the NFL Bylaws.

It would take some powerful mental gymnastics to argue the Patriots did not criticize the league in their amicus brief, which means that Goodell can consider the filing to be "conduct detrimental" to the league.

Based upon section 8.13 of the NFL Bylaws, Goodell could penalize the Patriots up to $500,000 and more draft picks. The Commissioner could also consider these "punishments" to be "not adequate or sufficient" and recommend a multitude of laughable penalties including, but not limited to:

8.13(B)(1): Cancel or forfeiture of the Patriots franchise.

8.13(B)(3): "Declare one or more players of the offending club...and the contracts thereon held by the offending club, be assigned to another club or clubs." (Yes, the commissioner could recommend that Rob Gronkowski be sent to the Colts...but this is probably for use in extreme tampering cases).

8.13(B)(7): Literally anything he wants. "Make any other recommendation he deems appropriate."

Of course, these penalties have to be approved by a minimum of 24 owners, but approval would be "final, conclusive, and unappealable."

While it would be unlikely that 24 owners would have agreed that Kraft should lose his team if he filed an antitrust suit against the NFL (which some fans were hoping for last year), the amicus brief is far less antagonistic to other owners and should be far more understandable to the other owners, who are shifting their support away from the league's handling of DeflateGate.

Kraft waited before filing any legal document and it could pay off for Brady- but if it doesn't work, then Kraft could be left footing a heavy bill.

The Patriots did not reply to a request for comment.


Edit: Pro Football Talk's Mike Florio, who actually is a lawyer, took a whack at this language and turned up some interesting points.

Remember way back at the start of the appeals process, and the Patriots asked to file in Minnesota, but were overturned because the NFL filed in New York first? Well, that could protect the Patriots since the NFL filed the claim, instead of the NFLPA and Brady.

Check out Florio's analysis here.