New England Patriots  

 

Judges question lawyers at Tom Brady suspension appeal

NEW YORK -- More than a year after officials found numerous footballs used by New England Patriots in the 2015 AFC Championship Game to be underinflated, lawyers for the NFL and Tom Brady were back in court Thursday, this time for the league's appeal of a lower court's decision to vacate the four-game suspension NFL Commissioner Roger Goodell imposed on the Patriots quarterback.

On what was supposed to be a day devoted to whether District Court Judge Richard Berman had correctly applied the law in overruling a decision by an arbitrator -- in this case Goodell -- the 1 hour, 13 minute hearing instead involved a barrage of questions directed at lawyers for the league and Brady, with the most pointed saved for Jeffrey Kessler, Brady's attorney.

While reading the tea leaves from judges' questions can be misleading, the judges spent considerable time on the underlying facts of the case and the strength of the evidence against Brady, with one member of the three-judge panel, Judge Denny Chin, saying the evidence of ball tampering was "compelling, if not overwhelming." The judges also asked repeatedly about the destruction of Brady's cell phone while the investigation into Deflategate was on-going and about the deference to Goodell having the authority to act as an appeals officer, powers given to him in the collective bargaining agreement.

After one of the judges said the destruction of the cell phone elevated the case from deflated footballs to an issue of obstruction, Kessler sought to explain the reason Brady typically destroys his used cell phones, citing privacy concerns. But Kessler was cut off.

"With all due respect," Judge Barrington Parker Jr. said. "Mr. Brady's explanation made no sense whatsoever."

But Parker also raised a critical point with the NFL's lawyer, Paul Clement: Is Goodell's role as judge, jury and enforcer so different from most arbitration cases that it limits the deference courts traditionally give to arbitrator decisions?

The answer -- and the appeals court's decision -- might not come for months. During a news conference just before the Super Bowl, Goodell would not discuss if the NFL would reinstate the suspension if the league wins the appeal.

Brady was suspended by the NFL last year after a league investigation by attorney Ted Wells concluded it was "more probable than not" that Brady was "generally aware" of team attendants deflating footballs prior to the AFC Championship Game against the Indianapolis Colts on Jan. 18, 2015.

Follow Judy Battista on Twitter @judybattista.

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