NFL – New England Patriots: Why The NFL Hasn’t Budged In Deflategate/Smart or Dumb?

Not that those presenting their case for the NFL seem to care, but Judge Richard M. Berman obviously still doesn’t buy into their case against Tom Brady. He has done everything but hit them over the head with a baseball bat and they have continued to stick to the “We did it because we can” defense…and I have to admit, either they are very smart (confident) or really dumb (over-confident.)

Why does the NFL stick to their story?

In my humble opinion it’s simple, the Supreme Court is very strict in their interpretation of what powers a Judge has in cases involving arbitration and has been known to overturn a Judge’s decision. Using the MLBA vs Steve Garvey ruling as a possible basis, the NFL feels if Judge Berman rules in favor of the NFLPA (Tom Brady) the Supreme Court will overturn his decision. And guess what? They may be (gulp) right. Many of the points the Supreme Court listed in their finding in that case are, for Patriot fans, a little scary.

You can read the entire opinion by clicking on the green highlighted section above, but it is long and written in legalize with a ton of footnotes. To save you that problem here are some points that may give the NFL lawyers hope, and should worry Patriots’ fans no matter what the Judge rules.

Like Tom Brady, Steve Garvey spent a lot of time in court in 1982. He lost when the Supreme Court over-ruled the Judge
Steve Garvey, another “nice guy,” spent a lot of time in court. He lost when the Supreme Court over-turned the Judge’s decision


  • The court voted 8-1, in an unsigned opinion, that courts have only limited power to review the decision of arbitrators
  • …established law ordinarily precludes a court from resolving the merits of the parties’ dispute on the basis of its own factual determinations, no matter how erroneous the arbitrator’s decision
  • The Court of Appeals usurped the arbitrator’s role by resolving the dispute
  • No serious error on the arbitrator’s part is apparent in this case. The fact that an earlier panel of arbitrators rejected the owners’ testimony as a whole does not compel the conclusion that the panel found Smith’s specific statements with respect to Garvey to be false
  • The arbitrator’s analysis may have been unpersuasive to the Court of Appeals, but his decision hardly qualifies as serious error, let alone irrational or inexplicable error.

So, now that you know where the NFL is coming from, can Judge Berman issue a ruling that won’t be overturned if he rules in favor of the NFLPA (Tom Brady)? And the answer is…(drum roll please)…no one knows for sure.  Yup, no matter how much you read about the Judge bashing the NFL now, he is a very smart man and does not want his credentials challenged and his ruling overturned by the Supreme Court.


Judge Richard M. Berman enters the courtroom- (photo Don Emmert/AFP/ Getty Images)
Judge Richard M. Berman enters the courtroom- (photo Don Emmert/AFP/ Getty Images)

While everything above explains why the NFL is so confident, Judge Berman should have them concerned with some of his points from Wednesday’s hearing.  How about this for starters:

  • Judge Berman questioned why NFL executive vice president Jeff Pash wasn’t available to NFLPA lawyers during the suspension’s appeal.  Berman went on to point out that there was precedent for a penalty to be rejected on such grounds.

Could that be the “smoking gun” everyone has waited for? Most expected the NFL to have more evidence and produce their “smoking gun,” but instead they may have shot themselves with their arrogance in this case. Maybe, just maybe, Judge Berman has found the link to not getting his decision overturned.

A few other points that Judge Berman had trouble with, and there were many:

  1. Berman called it a “quantum leap” when it came to Roger Goodell’s reference to what Brady allegedly did being compared to performance enhancing drugs. – See more at:
  2. “How are deflating footballs and not cooperating with the commissioner legally comparable to steroid use and a masking agent?”
In other words, he still doesn’t buy into the NFL case. He has set up another hearing, this time to include Commissioner (King) Goodell and Brady, for August 31 and dropped the bombshell that he isn’t certain he will have the decision written by the original September 4 target date.
Let’s be honest, it’s a long way from over. The question I haven’t seen answered is, can Judge Berman issue a “stay” on Brady’s suspension if he doesn’t reach a decision in time for the regular season?
As I have often stated in the past, I am not an attorney, so my assessment of the information is strictly as a layman and my opinions only. The items in quotes are directly from legal documents which help lead my to my conclusions. Oh, by the way, I’m also a lifelong Patriot fan and acknowledge that upfront…so please hold on the hate mail. Thanks

Follow me on Twitter @SnowdonBob

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