NFLPA grilled in Deflategate appeal hearing
The NFL Players Association’s lead attorney barely opened his mouth Thursday when he was peppered with questions from a three-judge panel in the latest Deflategate hearing.
“Good afternoon,” the players union’s general counsel said inside the U.S. Court of Appeals for the 2nd Circuit in Manhattan. “My name is Jeffrey Kessler, and may it please the court — ”
Kessler was quickly cut off and found himself playing defense in front of judges Robert Katzmann, Barrington Parker Jr. and Denny Chin, who are overseeing the NFL’s appeal.
Based on the difficult queries posed to Kessler in the 76-minute session, the NFL might have secured a significant victory.
The league is appealing a September ruling by District Judge Richard Berman, who vacated New England Patriots quarterback Tom Brady’s four-game suspension for alleged involvement in intentionally deflating footballs before the AFC Championship Game in January 2015.
Paul Clement, a lawyer hired by the NFL, also received pointed questions. But it was no comparison to the interrogation Kessler faced minutes later.
Kessler outlined an argument in which NFL Commissioner Roger Goodell acted as a partial arbitrator when he oversaw Brady’s June 23, 2015, hearing at NFL headquarters. When Kessler cited the league’s expense of at least $3 million to complete the Ted Wells report — the basis for Brady’s suspension — Parker cited deference to Goodell under the Federal Arbitration Act.
“Are you saying Mr. Goodell was out to get Mr. Brady?” Parker said.
Replied Kessler: “I’m saying (Goodelll) was out to protect the record.”
Parker and Chin were the most aggressive in questioning Kessler. Their problems with the NFLPA’s argument centered on the destruction of Brady’s cellphone during the investigation and deference to Goodell having the authority to act as the appeals officer, using Article 46 of the collective bargaining agreement.
“This all strikes me as hypertechnical,” Parker said to Kessler. “You all had notice with the cell- phone issue. Anybody within 100 yards of this case would have known that the cellphone issue elevates this merely from deflated balls to a serious issue of obstruction.”
The two big questions the judges directed to the NFL’s legal team were why the case wasn’t treated as a violation of equipment policy and why Brady’s punishment was so severe.
“I think the thing that is important to understand is that I don’t think the commissioner viewed this as just about footballs,” Clement said. “This is something that affected every offensive play that the team played, making it a serious transgression that was a concerted effort to circumvent the league’s rules.”
The judges could affirm or reverse Berman’s decision or send it back to Berman’s courtroom or to early stages of arbitration.