Tag Archives: Judge Richard M. Berman

New England Patriots – NFL: Judge Berman’s “No Deal” Is No Surprise

The good news is we could have Judge Richard M. Berman’s ruling in Tom Brady’s four game suspension, you know, “deflategate,” before I actually get to publish this article. After Monday’s meeting he said he will have a decision by Friday and possibly as early as Tuesday.

The bad news is, no matter how the Judge rules, odds are we won’t be through hearing about this fiasco for another year or more.

Judge Berman: “We did not reach a settlement. … In some cases, it doesn’t happen and this is one of those cases.”

In an abbreviated meeting Monday (8/31) between the attorney’s for the NFL and those for Tom Brady and the NFLPA, Judge Berman gave up. Yup, no matter how hard he pushed for a negotiated settlement neither party was willing to move enough (or at all) off their original position to bring about closure.

All the big guns were there for both sides, including NFL Commissioner (King) Roger Goodell, John Mara (chairman of the NFL Management Council Executive Committee), Tom Brady, Jay Feely (a member of the union’s executive committee) and a horde of Attorneys charging huge $$$$$$$$$. Could anyone really expect a last minute miracle? Not only no, but hell no!

Feely, speaking for the NFLPA outside the courthouse after the meetings, had this to say:

“For us it reinforces the desire and the need for an independent arbitrator in these matters of personal conduct,” … “But we understand Tom’s position and I think the process will work itself out.”

S-L-O-W Is Where We Go Now

No matter what he rules in the next few days, it is highly likely the loser will appeal the decision…and, when that happens, things slow to a crawl. If you think it’s been forever to get to this point your patience is about to be drained.

Judge Berman fast tracked this ridiculous case through his court with the hope he could force a settlement, but the higher courts have more important things to do than to rule on deflated football theories and they will take their time. You can be sure Berman will write his decision carefully to avoid being overturned.

Per Michael McCann of Sports Illustrated An appeal might not be decided by the U.S. Court of Appeals for the Second Circuit until next summer, meaning Brady could lose this round in court but play the entire 2015 season without disruption

Nothing New

So, nothing has changed from all the discussions everyone has had and, no matter what anyone says…once again…don’t believe anything you hear until the Judge issues his ruling. We’ll be writing a lot more about the silliest court action ever (should work it’s way into Ripley’s Believe It Or Not) once we hear what Judge Berman decides.

Follow me on Twitter @SnowdonBob


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: http://www.patsfans.com/patriots/blog/2015/08/19/nfl-takes-some-big-hits-wednesday-in-court/#sthash.atVN6RCd.dpuf
  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

NFL-New England Patriots: Will Brady Retire Before Deflategate Is Resolved?

I have just about convinced myself that neither the NFL (Roger Goodell) or the NFLPA (Tom Brady) are willing to move enough to settle their differences. At this stage it really doesn’t help either side to settle.

  • The NFL would look stupid (gee whiz, ya’ think?), after fighting for this long, to suddenly acknowledge the flawed Wells’ report was…well, flawed!
  • The NFLPA (aka Tom Brady) would have to admit guilt if they accepted any penalty other than a fine, and Mr. Brady has stated from the beginning he “did nothing wrong.”


Guns A Blazing (photo: genius.com)
Guns A Blazing (photo: genius.com)

Both sides came out firing and emptied their weapons Friday, leaving little doubt they are still at war. When you read their filings you get the definite impression Judge Richard Berman is not going to get what he’s looking for when they gather again in his war room…oops, courthouse. The rhetoric is strong and if you haven’t seen it, here are a few excerpts from the filings.

  • NFLPA: “At every turn, the NFL misstates the record-from the discipline that was actually imposed”… “…to the Award that was actually rendered (which ignores-not “distinguishes” – settled law of the shop and the binding Peterson decision), to undisputed arbitration evidence (even the NFL does not deny Brady’s lack of notice – the League merely tries to explain it away).
That was just the beginning, the filing also stated:
  • “The NFL’s seismic shifts are nothing short of breathtaking, “
  • “…the “independent” (Wells’) Report has now been relegated to “thorough,” the “independent” law firm has been relegated to “experienced and highly respected professionals,” and the whole façade of “independence” has been relabeled as “irrelevant.”

I won’t bore you with a lot of the legal language of the filing, but thought this one summed up the NFLPA’s stance in a nutshell

  • (The Award) is more a smear campaign than reasoned decision-a propaganda piece written for public consumption, at a time when the NFL believed the transcript would be sealed from public view, to validate a multi-million-dollar “independent” investigation”

In other words, liar, liar, pants on fire. I don’t know about you, but where I come from those are fightin’ words pardner and, if nothing else, Commissioner Goodell has always been ready to fight, despite his losing record and no matter how much it costs.

Not to be outdone, the NFL lawyers retaliated with a bombshell of their own when they filed later that day. How’s this for headline news:

Well now, we have definitely escalated from “generally aware” to actual pay-off huh? That doesn’t sound much like settling language to me. Of course, there’s still no direct evidence of this, but so what? As the old Wendy’s commercial asked “Where’s The Beef?”

Asking the NFL to play Where's The Beef?
Asking the NFL to play “Where’s The Beef?”


If (and they will) the losing party appeals whatever the judge’s decision is we are talking years, not months. Tom Brady has stated he wants to play for 7 or 8 more years (good luck on that Tom), but what happens if he retires before all the appeals are heard and ruled on?  Think about this:

  1. Would all this have been for nothing?
  2. Could the courts, the NFLPA, the NFL and all the football fans in the world finally relax and forget about this much-ado-about-nothing case?
  3. Will Roger Goodell continue as NFL Commissioner at a multi-million $$$ salary (sorry Pats fans, but the answer to that is yes)

Is anyone really optimistic that a settlement will happen after reading this? You have to believe even Judge Berman is doubtful. He once again grilled the NFL Wednesday yet they are sticking to their guns on four games. No room to negotiate when one side is ignoring the Judge!  A roomful of lawyers and a judge, sounds like a new TV series to me!

To read both filings, click on the green highlighted text, go to your favorite reading room (in my case the bathroom) and set aside a few hours. It took me about that long to read/re-read it all and I still don’t get all the legalize.

As I acknowledged in my ” The Judge Doesn’t Buy It” column, this was written with my own bias as a lifelong Patriots fan, so please hold off on the hate comments. Thanks.

Follow me on Twitter @SnowdonBob

New England Patriots: Judge Berman Doesn’t Buy It

Let me start by saying I was (gulp) wrong. Now if only NFL Commissioner Roger Goodell would just say the same thing and Tom Brady would apologize for not being “cooperative” we could all start talking about football instead of the legal garbage. Unfortunately, that’s too simplistic at this stage.

In my recent article on “Deflategate”, published before Wednesday’s conference between Judge Richard Berman, the NFL legal team and Tom Brady’s attorneys I mistakenly said this isn’t about whether Brady knew about the deflation of the NFL’s balls.  

The inaccurate Chris Mortenson NFL
The inaccurate Chris Mortenson NFL “leak” that drove football fans to a frenzy

Judge Berman, to the NFL’s chagrin, quickly dispelled that notion when he grilled NFL Attorney Daniel Nash about the proof of Tom Brady’s involvement in a conspiracy. And, (use your Gomer Pyle voice please) “sur-prise, sur-prise” …the Judge doesn’t understand how the NFL made their case in “Deflategate.” Here’s what he asked Nash:

“What is (the) evidence of scheme or conspiracy that covers the January 18 game? I’m having trouble with that.”

The NFL’s “So What” Defense

Yup, he went down that road despite everyone’s understanding that the legal issue was whether due process was given properly. And guess what the NFL Legal Team’s answer to just about every question was? You got it, the Collective Bargaining Agreement (CBA) signed off on by the players, including Mr. Brady, states the Commissioner can make the decision based upon his judgement…in other words the nah, nah, it doesn’t matter whether he is proven guilty or not defense.

I acknowledge I may have (OK, did) made the NFL look guilty of any real conspiracy by highlighting the most explosive part of the hearings. Judge Berman did state he still hadn’t made any decision on the case, so not to read too much into the questions he asked…but c’mon. “I’m having trouble with that sure sounds like he isn’t buying into why this has arrived in his court.

The judge questioned both sides and asked most of the questions fans, both pro and con Brady, have asked for going on seven months now.

  • Is there a solid link between Brady and any “direct evidence” connecting Tom Brady to the balls being tampered with?
  • Is there an e-mail tie between John Jastremski, the equipment assistant, and Jim McNally, the officials’ locker room attendant on that infamous day.

Dash’s reply, “no,” but (to paraphrase the rest) there’s enough circumstantial evidence to link Brady. Also see the “So What” defense above. At the meeting Brady’s attorney, Jeffrey Kessler, acknowledged that the Patriots’ QB wasn’t completely innocent in the Deflategate fiasco by not fully cooperating with the investigation on the advice of his agent Don Yee. That seemed like a first step in the right direction.


Now that we have the sensational headline out-of-the-way, the question becomes what went on behind closed doors? No matter what you see, hear or read…don’t believe it until a final agreement is reached or (oh no) it goes to court. Everyone (except me, of course) has highly informed secret sources who can’t be revealed because of privacy agreements (you know, freedom of the press) and “leaks” will occur…but until it comes from the horse’s mouth (sorry Judge Berman, didn’t mean to call you a horse) don’t buy into anything!

The parties continued to meet in private until after 7PM Wednesday. That’s a long time to not do anything, provided nothing was accomplished. Now it’s my turn to speculate that, if the NFL insists on Brady accepting the accuracy of the Wells report (as rumored) this case has a long, long way to go.  If however the NFL is willing to exclude that caveat there is some wiggle room.

The problem remains that no matter how many people poke holes in the report the NFL adamantly refuses to budge. Why, oh why, would Tom Brady now say he’d accept the report and acknowledge he lied under oath and set himself up for even more ridicule? It’s not going to happen…in my humble opinion.


Although both Brady and Goodell were present, they both let their legal counsel do all the talking after introducing themselves to the court. What happens next is up to the NFL (Goodell) and NFLPA (Brady) while Judge Berman awaits for the next get together, scheduled for August 19. He has flatly told them that they must have meaningful settlement discussions and wants them to make progress between now and that conference. Will that occur? Both sides will have to make some major concessions if a settlement is arrived at…and dammit, that’s highly unlikely.

Who Me? (Photo from youtube.com)
Who Me? (Photo from youtube.com)

All the opinions in this article are mine and have been influenced by my skewed look at things through the eyes of a lifelong Patriot fan. I admit it, so please, hold back on the hate comments.

Follow me on Twitter @SnowdonBob

New England vs NFL: It’s A Bare Knuckles Brawl

Robert Kraft Is Not Happy

Just as Judge Richard M. Berman was telling the National Football League Player’s Association and NFL to get together and try to solve their issues, the New England Patriots went on the offense.  Tired of looking like they are the new “Evil Empire” and accepting the wishes of King Roger Goodell the team and owner decided it was time to take off the gloves and get into a back alley brawl.

It started Wednesday when Owner Robert Kraft laid into his baby, the NFL. “…for reasons that I cannot comprehend, there are those in the league office who are more determined to prove that they were right rather than admit any culpability of their own or take any responsibility for the initiation of a process and ensuing investigation that was flawed….I have come to the conclusion that this was never about doing what was fair and just.”

To read all of Mr. Kraft’s rant just click on the highlighted text and we’ll whisk you to Patriots.com for it in it’s entirety.

That was a huge step for one of the most powerful owners in the NFL. In the past Kraft had been a loyal, team player and backed Goodell when others were calling for his ouster (re: Ray Rice initial suspension)

Friday the Patriots took another hunk out of the League Office’s hide with a solid uppercut, this time with a series of e-mails showing the league ignored their early pleas to close off the leaks within the NFL offices and publicly correct errors that purposely implied things that weren’t true (example: 11 of 12 footballs dramatically under-inflated).

The E-mails were between Robyn Glaser, general counsel for the Patriots, and Jeff Pash, counsel for the NFL and who was overseeing the Wells investigation.  They show attempts by the Patriots to get the NFL to correct initial misinformation being reported by the media and to investigate the sources of such misinformation , which could only have been league personnel (Mike Kensil) . Click on the highlighted portion and we’ll take you to the context of all the e-mails from February 17-18.

Judge Berman Say’s Tone It Down

As reported by Rachel Axon, USA TODAY Sports, Judge Richard M. Berman, who will preside over the case in the Southern District of New York, advised both the NFL and NFL Players Association that, “While this litigation is ongoing, it is appropriate (and helpful) for all counsel and all parties in this case to tone down their rhetoric.” 

Meanwhile, back at the ranch….

  • The NFL and NFL Players Association have agreed to an expedited process that seeks a “final resolution” to the lawsuit before the start of the NFL season
  • Mike Kensil, the NFL’s VP of game operation, has been identified by various sources as the individual responsible for the leaks from the NFL office (Read Goallinegazette article from Bill Bodell)
  • To add to all the hype it has now been reported that Judge Berman’s hearing will be open to accredited media! That should be fun.

So, it’s turned into a 10 rounder and we’re just finishing round 5 with lots to come. Break out the beverage of your choice along with a snack or two, ’cause there’s still lots of blows to be thrown in this bare knuckles brawl.

So now you are caught up…until the next missive is launched. Punch and counter punch…punch and counter punch…etc…etc

By the way, did you notice I wrote this entire article without once mentioning Tom Brady…oops

Follow me on twitter @SnowdonBob