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Judge will encourage Tom Brady, NFL to settle in conference

This is what one NFL team owner said when asked for his thoughts on the NFL's imbroglio with Tom Brady:

"I can't believe we are still talking about this."

Alas, we still are. And the conversation will ratchet up again Wednesday, when Brady and Commissioner Roger Goodell both make command appearances before U.S. District Judge Richard Berman. Berman will attempt to get the league and the NFL Players Association to settle this dispute, which arose out of underinflated footballs used nearly seven months ago, has consumed conversation since, could keep Brady off the field for the first month of the season and has devolved into a messy fight that, almost everyone agrees, is not making anybody on any side look good.

How did we get here?

Two weeks ago, Goodell upheld Brady's four-game suspension for what the league believes was his involvement in having the footballs underinflated in the AFC Championship Game, rejecting Brady's appeal. Brady and the NFLPA then sued the league. Though Brady and company filed in Minneapolis, which is presumed to be more player-friendly, the suit will be handled in New York, which is presumably more management-friendly. Why? Because the NFL, with the advantage of knowing when the appeal would be decided, moved quickly to ask the district court there to certify Goodell's authority to suspend Brady, essentially beating the union to the courthouse.

What happens Wednesday?

Berman will first try to get the two sides to settle, and you can expect him to be aggressive about it. Consider that on Tuesday, Berman asked the sides to engage in good-faith settlement talks prior to Wednesday's settlement conference. He will meet with the parties in the robing room at 10:30 a.m. ET before the 11 a.m. conference, to hear where they are.

It appears, for now, that Berman himself will try to negotiate the peace, rather than appointing a magistrate to handle it. In conversations following Goodell's decision to uphold the four-game suspension, several team owners have expressed frustration that the case has taken so long. But while several would be happy to see a settlement bring the issue to an end, none are optimistic that a settlement can be reached. All believe the gap between Brady and the league is simply too wide to be bridged, unless one side moves significantly -- and nobody expects that.

Berman likely will bring the parties -- Goodell, Brady and their respective coteries of lawyers -- together in a group, to ask them to make some opening remarks. That portion is expected to be open to the media and the public. But then the doors will close, the outside world will be excluded and the real work will begin. Berman probably will meet with them together and separately, hoping to find some common ground and -- perhaps most importantly -- remove some of the emotion from a case that has been at full boil for months. Keeping the media and public out is a move designed to facilitate candid conversation; the parties can certainly say things in private that they would not say in public. NFL Media legal analyst Gabe Feldman does not expect this to be over quickly. He expects Berman to keep the parties there for several hours in an attempt to get closer to a deal.

If a settlement is to be reached, it could happen at any time. There is a second settlement conference scheduled for next Wednesday -- and if the two sides meet for that conference, it's a signal that they are at least talking, and that there is hope a deal could be worked out. However, if they fail to reach an agreement on Aug. 19, there would be a question as to whether they could have oral arguments in time for Berman to still make his decision by Sept. 4. A better indicator that there might be progress is if another settlement conference is scheduled between Aug. 12 and Aug. 19. If there is no progress, that Aug. 19 meeting will be used for the union and league to present oral arguments in the case to Berman.

What happens if settlement talks fail?

Berman has said that if there is no settlement, he will decide the case by Sept. 4. That, not coincidentally, is the first day of the first practice week of the regular season for the Patriots, who, as the defending champions, open on Thursday, Sept. 10. So Sept. 4 is the first day that Brady would have to be away from the team if his suspension stands. Keep this in mind: Even if the settlement talks fail, the sides could still settle, even after Berman hears oral arguments.

What is Berman deciding?

Not Brady's guilt or innocence or whether he thinks the four-game penalty is too harsh or too light. He is rendering an opinion on the process. Can Goodell suspend for failure to cooperate? Can he suspend for tampering with equipment? Was he an impartial arbitrator in the appeal? In briefs filed late last week, the players' union attacked the fairness of the proceedings and the lack of notice that a player could be suspended for the transgressions that the league believes Brady was involved in. The league's response was that the commissioner's powers to discipline come from the collective bargaining agreement. There are other interesting nuggets in there: The league said, for instance, that the independence of Ted Wells' investigation -- which it had long touted -- is irrelevant because it is not required by the CBA.

Berman will be making a straight up-or-down decision. He either upholds the commissioner's power, which would allow the four-game suspension to stand, or he will side with the union, and the entire suspension will be vacated. What he won't do: decide something in between those two options.

And then this will finally be over?

Probably not. If Brady loses at the district court, he will appeal, and his lawyers almost certainly will ask the circuit court to stay the district court's decision. That would allow Brady to practice and play until the circuit court rules. If the league loses at the district-court level and Berman vacates the suspension, the NFL likely will hold a new arbitration hearing. This is the same thing Judge David Doty ordered in the Adrian Peterson case.

Feldman doubts that the league would seek a stay to keep Brady off the field during the appeal. Judges will grant stays if there is a chance of irreparable harm -- Brady can easily claim harm if he has to serve what would be, at that point, an unwarranted suspension. But the league would have a tougher time arguing how it would be harmed if, should it ultimately prevail, Brady were to end up serving his suspension later in the season than at the beginning. Finally, even an appeal by Brady to the circuit court would not preclude the sides settling at any point before the circuit court rules.

Follow Judy Battista on Twitter @judybattista.

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