‘Deflate-gate’ Judge Signals Doubt|for NFL Goodell’s Steroid Analogy

     MANHATTAN (CN) – A federal judge struggled at a two-hour hearing Wednesday to see how Patriots quarterback Tom Brady earned a four-game suspension based on the findings of the National Football League investigation into “deflate-gate.”
     Evincing sympathy for Brady, U.S. District Judge Richard Berman said NFL Commissioner Roger Goodell’s findings took a “quantum leap” from the report he commissioned.
     Though Goodell found that Brady participated in the ball-deflation controversy, Brady’s lawyers call that position unsupported by the record.
     Goodell has refused to back down, however, and Judge Berman skewered league lawyers Wednesday on the commissioner’s recent remarks calling steroids the “closest parallel” to ball tampering.
     “How are deflating footballs and not fully cooperating with the commissioner’s investigation legally comparable to steroid use or masking agents?” the judge asked.
     Daniel Nash, from the firm Akin, Gump, Strauss, Hauer & Feld, replied that “both violations involve an effort to gain a competitive advantage.”
     Jeffrey Kessler, an attorney for the player’s union representing Brady, called it more similar to an equipment violation in the player’s guide, which would have called for a fine on a first-time offense.
     The “deflate-gate” controversy erupted at halftime in the Jan. 18, 2015, AFC championship matchup between New England and the Indianapolis Colts, after referees found that the balls Brady had been using were deflated below minimum standards.
     With balls pumped back to the required pressure, Brady’s second-half passes connected more frequently, and he led his team to a 45-7 win that paved the Patriots’ way to squeaking past the Seattle Seahawks to become the champions of Super Bowl XLIX.
     The Patriots are set to begin the upcoming season on Sept. 19, and Judge Berman began Wednesday’s hearing by noting that he set a personal deadline of Sept. 4 to make his decision.
     “My current plan is to meet that deadline, but my prerogative as a judge is you can’t hold me to it,” he quipped.
     Brady, who did not appear in court for arguments, denies ever tampering with the balls to get an edge in the game. His lawyer blames the ball’s deflation on its transfer from the warm locker room to the cold stadium.
     “No one at the NFL knew about the ideal gas law, which is surprising because I think I studied that in ninth grade chemistry,” Kessler joked, to laughter in the court.
     The league’s investigation meanwhile found it “more likely than not” that Patriots team attendants – John Jastremski and Jim McNally – took the air out of the balls, and also “more likely than not” that Brady was “generally aware” of the tampering.
     Kessler, the union attorney, called it unprecedented for the NFL to punish a player for awareness of another person’s alleged misconduct.
     “Taking drugs is conduct detrimental – if you are generally aware that your teammate was taking drugs, I could suspend you,” Kessler said as an example.
     At one point, Berman invited the lawyer to read Brady’s testimony about his football preferences into the record.
     Back when league’s arbitrators were weighing the findings of Goodell’s investigation, Brady said he preferred the lower end of the regulation range – 12.5 PSI, or pounds per square inch, Kessler said.
     “Ball pressure has been so inconsequential that I never even thought about it,” Brady said at the hearing, as quoted by his lawyer Wednesday.
     Football fans should not expect the federal court to resolve the factual controversy of the case. Both of the parties agree that Berman need merely find whether the league’s arbitration provided Brady a fair enough process to be formally recognized. Berman does not have to decide what happened during the AFC championship game.
     Federal judges must defer to the arbitrator’s decision if he “arguably” applied the laws and rules, so Brady must overcome a very high standard for proving the NFL hearings unfair and vacate his suspension.
     Nash told the judge that the player’s union is trying to turn that standard on its head.
     “He’s asking you to stand in the shoes of the arbitrators,” he said.
     Brady’s attorney Kessler countered that, while tough, this bar is not insurmountable.
     Quoting the standard found in the district, Kessler said that an arbitrator “may not dispense his own brand of industrial justice.”
     “If [the NFL’s lawyers] want the protections of arbitration, they must also take the limitations of it,” he said.
     Federal judges in the district have vacated at least 18 arbitration awards, and Berman set one aside within the past four months, Kessler added.
     Nash argued that a higher principle is at stake for the league.
     “This is not mere ball tampering,” he said. “This is a serious issue.”
     Gesturing to the packed courtroom, he added: “There is a reason there is so much attention to [this hearing].”
     Exactly one week ago, Brady’s appearance in court brought throngs of reporters to the courtroom and an overflow room. Camera crews surrounded the building next to fans wearing football hats, and Internet meme went viral when one of the courtroom sketches of Brady, as the artist told one reporter, made him “look like Lurch,” the undertaker-like butler for the Addams Family.
     Showing that the Twitter sensation arrived even into the judge’s chambers, Berman kicked off Wednesday’s hearing by saying he would “keep it serious” despite an inclination “to make some comment about sketch artists.”
     Shortly after noon, Berman ended the public portion of proceedings and called the attorneys into the robing room for confidential settlement discussions. Lawyers were seen exiting the building at around 2 p.m.
     The parties are expected to reconvene on Aug. 31.
     If the parties do not reach a deal, Berman remarked last week that the average life of civil cases is two years, including appeals.

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