Where’s the ‘Gate’ in Deflate-gate, Judge Asks

     MANHATTAN (CN) – The Patriots footballs that prompted the suspension of quarterback Tom Brady may have been underinflated, but a federal judge’s courtroom was filled to capacity, plus an overflow room, for a 90-minute hearing Wednesday on that punishment.
     “This Deflate-gate, I don’t know where the ‘gate’ comes from,” U.S. District Judge Richard Berman said Wednesday.
     The term entered popular vernacular after NFL officials discovered that the Patriots had been using footballs inflated below the league’s minimum-prescribed level halfway through a Jan. 18, 2015, championship matchup against the Indianapolis Colts.
     Though critics accused Patriots’ locker room and ball attendants of having intentionally taken air out of the footballs to give Brady a competitive edge for the big game, Brady’s second-half passes with regulation footballs connected more frequently.
     The quarterback racked up four times as many yards and twice as many touchdowns in leading 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.
     Tainting the legacy of the season, a league investigation found it “more probable than not that Tom Brady was at least generally aware” of ball tampering.
     Referring to the carefully hedged language, Berman said on Wednesday: “I’m not sure that I know what that means.”
     The judge also repeatedly questioned the evidence for the finding of any “gate,” or conspiracy, alleged by the league.
     If the NFL and Brady cannot settle the case, Berman now must decide whether the NFL’s findings should be respected under the league’s 2011 collective-bargaining agreement with the players’ union.
     Berman has made no secret that he wants the NFL to settle its dispute with Brady.
     When word spread that Berman ordered Brady to attend settlement discussions, TV crews started swarming around the courthouse to see if the parties could come to a deal before the next season. Dozens of reporters filled the jury box, the pews and a press room where the proceedings streamed via closed-circuit video preparing for a possible resolution.
     Before the hearing began, Berman remarked that the average civil case spans for at least two years with appeals, and the upcoming season is only two months away.
     He personally called for both of the parties to meet privately in his robing room before and after court session, even though a magistrate usually mediates these confidential discussions.
     This morning’s negotiations stretched 20 minutes over their scheduled time but the parties could not come to an agreement.
     Berman reminded the parties that settlements could help avoid the “adverse publicity” and “poisoning [of] the wells” that comes with protracted litigation, and he then tore into both parties with pointed questions.
     Pressing a lawyer for National Football League Management Council, Berman appeared skeptical there was any “direct evidence” tying Brady to the supposed “scheme” the league found.
     Attorney Daniel Nash, representing the National Football League Management Council for the firm Akin, Gump, Strauss, Hauer & Feld, insisted: “Your Honor, there is considerable evidence.”
     Nash pointed mostly to a 139-page document prepared Theodore Wells, a partner at one of the league’s regular outside law firms, Paul, Weiss, Rifkind, Wharton & Garrison.
     The Wells report does not list any meeting between Brady and the attendants – John Jastremski and Jim McNally – or any texts or emails showing any agreement to deflate the balls before the big game.
     Nash noted, though, that the balls were indisputably deflated and McNally had been “breaking all protocol” when he went to the bathroom in the middle of the game.
     In affirming the suspension, commissioner Goodell revealed that Brady destroyed his cellphone.
     “Those text messages were not produced,” Nash said, referring to the finding. “The phone was destroyed. It’s clearly reasonable to infer that that’s evidence of culpability.”
     Jeffrey Kessler, an attorney for Brady through the National Football League Player’s Association, bristled at this allegation.
     “This is the most overblown issue in the history of my 40 years of litigation on cases,” he said.
     Kessler said that the league got “every single text” message that Brady sent to Jastremski and McNally from third parties.
     Brady did not try to destroy any of the evidence, but protect his privacy “because of his celebrity [and] because of the extremely high likelihood of leaks,” he said.
     In fact, Kessler noted, news outlets picked up on the fact that he paid $8,500 for a pool cover from court documents in this litigation.
     The NFL argues that Berman must give to the league’s findings deference under the collective bargaining agreement.
     The players’ union, on the other hand, says that a federal court decision on vacating the league’s suspension of Vikings running back Adrian Peterson shows Berman has the power to shelve the NFL commissioner’s decision.
     That case is now under appeal before the Eight Circuit.
     Berman emphasized, before and after arguments, that his “devil’s advocate” questioning does not block him from looking at the case with a “completely open mind.”
     When the hearing ended shortly before 1 p.m., lawyers for the parties streamed back the robing room, and the confidential discussions remain ongoing hours later.

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