Deflategate back in federal courtroom

NFL will try to persuade 3-judge panel to reinstate Brady’s 4-game suspension

The next step in the Deflategate saga has arrived.

The NFL Management Council and NFL Players Association are due back in court Thursday at the U.S. Court of Appeals for the 2nd Circuit in New York.

The hearing is in response to a September ruling by District Judge Richard Berman to vacate New England Patriots quarterback Tom Brady’s four-game suspension for his alleged involvement in a scheme to intentionally deflate footballs during the AFC Championship Game in January 2015.

Judges Robert Katzmann, Barrington Parker Jr. and Denny Chin comprise the three-person panel in charge of overseeing the league’s appeal.

“They owe no deference to Judge Berman’s decision,” Jodi Balsam, who served as the league’s counsel for operations and litigation from 1994 to 2002 and as counsel for football operations from 2002 through 2007, told USA TODAY Sports by phone.

“That doesn’t make it more or less likely that they will overturn him. The 2nd Circuit gets to review the issue from afresh. The question becomes: Did they violate their own procedures, and do those procedures violate public policy in any way?”

At the heart of the case is the NFL’s defense of its use of Article 46 of the collective bargaining agreement, which the league says gave Commissioner Roger Goodell the authority to act as the hearing officer during Brady’s appeal at NFL headquarters June 23, 2015.

When asked about the case last month, Goodell said he wasn’t using Brady as an example but was fighting for the NFL’s rights under the labor agreement with the union.

“This is not an individual player issue,” Goodell said at his stateof-the-league news conference in the lead-up to Super Bowl 50. “This is about the rights we negotiated in our collective bargaining agreement. We think they are very clear. We think they are important to the league going forward, and we disagree with the district judge’s decision. We are appealing that, which is part of the legal process.”

All three 2nd Circuit judges have received extensive documents in the weeks leading up to Thursday’s hearing, including a transcript of the hearing Berman oversaw, legal briefs written by the NFL and NFLPA and any other relevant materials.

Thursday’s proceeding will be an oral argument hearing in which each side gets 15 minutes to present its case and each judge has the right to interrupt with questions. There will be no fact finding and no witness testimony, meaning neither Goodell nor Brady is expected to attend.

“The arguments of the lawyers will have very little to do — almost nothing to do — with the underlying facts of Deflategate,” said Balsam, an associate professor and director of civil externship programs at Brooklyn Law School. “It will have everything to do with the process of arbitration.”

After the oral arguments are heard, the judges will hold a voting conference to come to a tentative decision that will be confidential. Later, one judge will be assigned to author the court’s opinion.

Balsam said a decision could come sooner rather than later, especially given the timeline from the moment the NFL filed the appeal in September with oral arguments set to be heard not even six months later.

“That’s very quick for the 2nd Circuit,” she said. “And then the 2nd Circuit has the internal administrative rule in which they strive ... to issue decisions 60 days after the oral argument.”

Balsam said that timeline is typically honored unless the case is complex or the court asks the parties for additional arguments.

Brady’s suspension originated from an investigation led by Ted Wells, an NFL-appointed attorney who found that it was more probable than not that the twotime league MVP was at least generally aware of the alleged intentional deflation of footballs before the Patriots’ victory against the Indianapolis Colts, two weeks before they won Super Bowl XLIX.

After Wells completed his investigation, the NFL fined the Patriots organization $1 million and docked two draft picks, a firstrounder in 2016 and fourthrounder in 2017, penalties owner Robert Kraft chose not to fight.