Appeals Judges Deflate Tom Brady’s Case

By DANIEL STEIN-SAYLES

The attorney for New England Patriots’ quarterback Tom Brady faced a bombardment of questions on Thursday as the court heard the National Football League’s appeal to reinstate the league’s suspension of the Patriots’ star in the “deflategate” scandal.

Jeffery Kessler was barely able to introduce himself before Judge Denny Chin intervened with a question, setting the tone for the NFL Player Association’s lawyer’s argument. Kessler, along with the NFL attorney, Paul Clement, argued their cases in front of a three-judge panel in the 2nd U.S. Circuit Court of Appeals in Manhattan.

Brady allegedly played a role in the deflation of footballs by the Patriots when they faced the Indianapolis Colts in the AFC Championship game in 2015, a game the Patriots won handily, 45-7. For his alleged role, Brady was suspended four games by NFL Commissioner Roger Goodell.

Following the suspension, the player’s union, on behalf of Brady, sued the league in July of 2015. After hearing the lawsuit, district court Judge Richard Berman vacated the suspension. Following the decision, Brady remained eligible for the 2015-2016 season.

Thursday’s proceeding were brief as each side was initially given 15 minutes to argue their case as well as answer questions from the three judges who will decide the case; Chief Judge Robert A. Katzmann, Judge Barrington D. Parker, and Chin. Both lawyers were given extensions for their arguments as Kessler spoke for around 35 minutes and Clement spoke for nearly 32 minutes.

The judges touched on a number of issues, but spent a lot of time questioning Kessler about Brady’s destruction of his cell phone and his testimony.

“Why can’t the commissioner suspend Brady just for the destruction of the phone,?” Parker would ask before saying that the cell phone raised the stakes of the case. “Mr. Brady’s explanation made no sense whatsoever.”

Chin followed up this line of questioning by saying, “the evidence of ball tampering is compelling.”

Kessler later was asked if Goodell was out to get Brady. In response Kessler said, “I think he was out to protect what he did,” referring to the $3 million spent to investigate the deflation of footballs and to create the Wells report, a 243-page report created by Ted Wells who was appointed by the NFL to investigate the case.

While Kessler seemed to be grilled more than his counterpart, Clement faced a number of questions and comments from the judges as well. “On first blush this is a draconian penalty for a few pounds per square inch of air,” one of the judges said.

The judges also questioned the disciplinary power Goodell wields, calling him “the judge, the jury… and the enforcer.”

Celement stressed several times the seriousness of Brady’s actions and that Goodell did not find Brady’s testimony credible.

There was no decision made in court on Thursday. Decisions in appellate cases generally take 10 to 14 months after the initial filing, which in this case happened in September of 2015, according to Sports Illustrated legal expert Michael McCann.

At the end of the hearing Clement urged the judges to not let this decision hang over Brady and the NFL going into the next season, which begins in September.

As expected, both Brady and Goodell did not appear in court.

Seasoned courtroom observers conjectured that the tenor of the jurists’ questioning indicated they would likely reinstate the suspension.