Destroyed phone further deflates Brady’s defense

Deflategate is now in federal court. National Football League Players Association v. National Football League, (read, Tom Brady v. Roger Goodell) is a federal court challenge by the Players Association to New England Patriots’ quarterback Brady’s four game suspension for using deflated footballs in the AFC Championship Game on Jan. 18.

Judges love to see civil cases settled. Soon after he got the case, federal Judge Richard M. Berman in New York City ordered the parties to engage in “comprehensive, good-faith settlement discussions.” Berman even directed both NFL Commissioner Goodell and Brady to appear at settlement conferences on Aug. 12 and 19, and made a magistrate-judge available to the parties “to assist you if you wish” in negotiating a settlement.

Good luck with that. Most civil cases settle but this one is different because neither side really has an incentive to reach a deal. For Goodell, it’s, “I am in a strong position, why should I negotiate?” For Brady, it’s, “I am in a weak position, how can I negotiate?”

Goodell should be feeling empowered because of the revelation that Brady had destroyed his cellphone during the NFL’s investigation. The NFL investigators had previously requested access to information on Brady’s cellphone and were scheduled to interview Brady on March 6. Before the interview, Brady directed his assistant to destroy his cellphone, which had as many as 10,000 text messages from a period that included the AFC Championship Game and the first six weeks of the NFL’s investigation. In a criminal case, destruction of evidence during an investigation can result in obstruction of justice charges. In civil cases, judges have instructed juries that they can draw an inference of “consciousness of guilt” by a party who destroys evidence.

The case against Brady had no eyewitness testimony or smoking gun evidence. Instead, the allegations of misconduct rested on paid experts’ opinions that the footballs were deflated below the permissible minimum pressure and on circumstantial evidence of Brady’s “general” awareness that a Patriots’ locker room attendant and assistant equipment manager deliberately deflated the footballs. This was hardly a slam dunk case, because other experts opined that the deflation may have been due to environmental factors and Brady strongly denied knowledge of any tampering with the footballs. By destroying his cellphone, Brady handed the NFL much-needed evidence.

Goodell is also in a strong position because Brady is challenging a labor arbitration award rendered under procedures agreed to by the Players Association. Courts are reluctant to overturn arbitration awards because the point of arbitration is for the parties to resolve disputes privately and efficiently without court intervention.

Ordinarily, absent a demonstrably unfair outcome, a court will not want to second-guess the disciplinary decisions by a self-regulated sports league. The Players Association’s heavy burden is to convince Judge Berman that a biased arbitrator, Goodell, produced a biased result. But the cellphone destruction makes it all that harder to demonstrate that Goodell acted unreasonably.

From Brady’s point of view, a settlement likely will not undo the damage to his reputation from the suspension. Typically, settlements result when the parties meet somewhere around the midpoint of their positions, which in this case would be a two-game suspension. Even if Goodell were somehow inclined at this point to compromise, a two-game suspension still leaves his adverse findings as the last word on Brady’s conduct.

Brady is arguably better off taking even a long shot at persuading Berman that the suspension is unfair because, for example, the NFL did not provide him with notice that “equipment violations” were punishable other than by fines; and that the cellphone destruction is a “red herring” because the text messages were available on the cellphones of other Patriots’ personnel. Although rare, court reversals of arbitrators do happen, as witness the federal court reversal of Minnesota Viking Adrian Peterson’s suspension by the NFL for child abuse.

The only party for whom a settlement really makes sense is the public, because it will end this mess instead of prolonging it. But don’t count on that happening or watching Tom Brady play in the first four games this season. Berman and his magistrate-judge have their work cut out for them to get this case settled.