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Second Circuit Seems Primed to Bench Patriots Star Tom Brady

MANHATTAN (CN) - Though a federal judge crushed attempts to bench Tom Brady last year in connection to "Deflategate," the league's appeal Thursday showed that luck may have run out for the New England Patriots star quarterback.

"The evidence of ball tampering is compelling, if not overwhelming," Second Circuit Judge Denny Chin told an attorney for Brady's union.

Investigators for the National Football League had reached a similar conclusion last year when referees discovered that Brady had been using balls deflated below minimum standards in the first half of a Jan. 18 championship matchup between the Patriots and the Indianapolis Colts.

The league's report found that Brady was "generally aware" of the ball tampering, and NFL Commissioner Roger Goodell tried to penalize Brady with a four-game suspension, set to take effect when the next season began.

Though a federal judge blocked that effort with just weeks to spare in September 2015, Goodell hopes a Second Circuit reversal will restore Brady's suspension for yet another season.

Thursday's hearing focused on the nuts and bolts of the scandal, but the judges will decide only whether the NFL gave Brady a fair hearing, not if he cheated to gain a competitive advantage.

Jeffrey Kessler, the attorney representing Brady's union, urged the judges not to let their opinions about Brady's actions sour them on this distinction.

"I sense that you're all influenced by your view of the facts," Kessler remarked at one point.

All of the judges seemed particularly troubled by Brady's destruction of his cellphone during the league's probe - even though that did not stop the league from reviewing all of Brady's text messages, as provided by third parties.

Brady's claim that he breaks his phones regularly to protect his privacy interests as a celebrity held little sway for Judge Barrington Parker.

"With all due respect, Mr. Brady's explanation of that made no sense at all," Parker told Kessler.

The NFL's lawyer Paul Clement, who is a former U.S. solicitor general, told the court that evidence destruction made the matter more serious.

"It turned it from air in a football to compromising the integrity of a proceeding the commissioner had convened," he said.

On the plus side for Brady, the judges had little doubt that Brady faced unorthodox arbitration hearings leading to his suspension.

Questioning what role Commissioner Goodell served, Parker said "the judge, the jury, the executioner is not the right word, but the enforcer."

Goodell had one of the league's regular outside law firms - Paul, Weiss, Rifkind, Wharton & Garrison - co-lead the investigation of "Deflategate" along with NFL Executive Vice President and General Counsel Jeffrey Pash.

The firm's partner Theodore Wells issued the report upon which Brady's discipline was based, and Goodell himself oversaw the appeal. Kessler argued that the $3 million price tag on the so-called Wells report gave the league incentive to pin misconduct on Brady.

Putting it delicately, the league's attorney Clement said: "This may not have been the platonic form of this hearing."

Critical to his decision vacating Brady's suspension last year, U.S. District Judge Richard Berman said Brady had no notice that the league could inflict such a drastic punishment for his supposed involvement in equipment tampering.

NFL policies for equipment violations give players no notice of suspensions, only of fines, according to the ruling.

Goodell has caught heat from the courts before - specifically with regard to the suspension of Minnesota Vikings running back Adrian Peterson - for holding players to a standard that NFL policies do not spell out.

Berman also called it unprecedented for the league to claim that Brady's supposed obstructionism justified the suspension.

While Parker conceded at Thursday's hearing that the penalty may have seemed "draconian," the judges noted that NFL policies describe fines as the "minimum" punishment.

Chief Judge Robert Katzmann asked whether the league's commissioner could have "broad authority" when presented with "novel situations."

Judge Chin, who has an athletic history as a four-time marathoner, appeared unconvinced it was the federal courts role to "second-guess" the commissioner's decision.

Brady, whose appearance at last year's proceedings sparked an Internet sensation over an unflattering courtroom sketch, skipped today's hearing.

Clement, the NFL attorney, urged the appeals court not to call for more proceedings at the trial-level.

"It would be an awful shame if this were to hang over the league for a whole other season," he said.

Brady led the Patriots to Super Bowl victory one month after the "Deflategate controversy" erupted, but his luck ran out this past January in a playoff game with the Denver Broncos.

After besting the Patriots, the Broncos went on to win the Super Bowl against the Carolina Panthers.

It remains contested whether deflated footballs could have given Brady a competitive advantage back in 2015.

Brady's passes actually connected more frequently during the second half of the Jan. 18 game when he used balls pumped up to the proper pressure.

Back in September, Judge Berman offered no opinion on whether Brady cheated or the ideal gas law caused the balls to deflate, while being transported from the warm locker room to the cold field.

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