Court has adjourned in New York, without a settlement.
Patriots quarterback Tom Brady, NFL commissioner Roger Goodell, and the legal counsel for both sides met with Judge Richard Berman at U.S. District Court in New York City Wednesday. The meeting was the first in an attempt to end the stalemate between the NFL and NFLPA over Brady’s punishment for his involvement in the Deflategate saga.
“I have not made up my mind which side will prevail,’’ Berman said after the initial meetings, according to ESPN’s Sal Palantonio. “I think there are varying strengths to both sides here.’’
According to Palantonio, Berman said the two sides are still far apart, but the judge does believe there will be a settlement. Berman does not anticipate this case going to trial but the court will proceed on two tracks: settlement talks and litigation. Both legal teams said they were OK proceeding on both tracks.
Berman put the NFL on the defensive over its four-game suspension of Brady, demanding to know what evidence directly links Brady to deflating footballs and belittling the drama of the controversy.
According to Stephen Brown, who covers the Manhattan Federal Court for the New York Daily News, Berman was skeptical of Ted Wells’s dual role as investigator and attorney as he was hired by the NFL.
Berman repeatedly asked NFL lawyer Daniel Nash for direct evidence as he gave both sides a chance to state their case in the first hearing before him.
Berman grilled Nash about why some evidence used in the Wells report wasn’t shared with Brady’s team and asked Nash if there is “any direct evidence linking Mr. Brady to tampering?’’
Berman then added, “Turns out Mr. Brady did better with higher inflated balls than underinflated balls,’’ according to Brown. “You might say he got no competitive advantage.’’
Berman: "What is the evidence of a scheme or conspiracy that covers the Jan. 15 game? I’m having trouble finding it."— Stephen Brown (@PPVSRB) August 12, 2015
Nash responded there was “considerable evidence Mr. Brady clearly knew about this,’’ including records of text messages and phone calls between the quarterback and one of two Patriots employees implicated in the scandal known as “Deflategate.’’ But he also said there was no “smoking gun’’ showing Brady had direct knowledge that the balls were deflated.
When the union got its chance to argue, the judge asked attorney Jeffrey Kessler why two Patriots employees would deflate balls without Brady’s knowledge.
“It looks like they…deflated the game balls?,’’ Berman said according to Brown. “Why would either one of them do that without Mr. Brady’s consent?’’
Kessler: "It is conceivable Mr. McNally thought it would be something that would be good for his QB. That makes a certain logical sense."— Stephen Brown (@PPVSRB) August 12, 2015
Kessler said the union does not believe the balls were deflated but, if they were, the employee did it on his own because he “thought it would be good for his quarterback.’’
The judge also questioned why Brady destroyed his cellphone in the midst of the inquiry — a move that the league argues was further proof of his deception. Kessler claimed that the quarterback got rid of the phone on the advice of his agent to protect his privacy but had otherwise cooperated with the inquiry.
However, in hindsight, “You’re right, it could have been done a different way,’’ the lawyer said of the phone.
Brady and Goodell didn’t speak during the hearing, except to introduce themselves to Berman. Brady, his head lowered, looked dour throughout a hearing that lasted about 1 hour, 20 minutes. Immediately afterward, Brady smiled slightly as he signed sketches for two court artists.
The public portion of the hearing ended at 12:45 p.m. EDT after about an hour, 20 minutes, and Berman began meeting individually with each side to continue settlement discussions in private.
According to new reports on Wednesday, any settlement between the league and Brady seems unlikely at this point, as the two sides appear to be far apart.
“Settlement talks yesterday b/w the NFL and NFLPA on Brady went nowhere,’’ NFL Network’s Albert Breer tweeted adding,“And when I asked about Monday settlement talks, one source said ‘if you’d call them that.’ So that should explain where things are.’’
ESPN football reporter Chris Mortensen — who erroneously stated that 11 of 12 of the Patriots’ AFC Championship game balls were underinflated by two PSI under the minimum allowed according to NFL rules — reported that the NFL changed its settlement offer Monday, saying there will be no settlement unless Brady accepts the findings of the Wells Report.
Others have already taken issue with Mortensen’s theory.
Brady can't accept Wells Report in settlement since his testimony refutes it. If this is NFL's best offer, no deal. https://t.co/cq55ixCYzX— Michael McCann (@McCannSportsLaw) August 12, 2015
ESPN says NFL is demanding Brady accept Wells Report in any settlement. Which means admitting perjury, so it's a ridiculous request.— Dan Wetzel (@DanWetzel) August 12, 2015
In a July 28 decision upholding the suspension, Goodell criticized Brady for having an aide destroy a cellphone containing nearly 10,000 text messages from a four-month stretch including the AFC Championship Game, when the Patriots defeated the Indianapolis Colts, 45-7.
Goodell accused Brady of obstructing the NFL probe about a controversy that represented “conduct detrimental to the integrity of, and public confidence in, the game of professional football.’’
In court documents, the union’s lawyers said the suspension was unfair and violates the labor contract and complained that it would cause irreparable harm to Brady by forcing him to miss games.
They called a June appeal hearing before Goodell “a kangaroo court proceeding, bereft of fundamentally fair procedures.’’
Upon entering the court Wednesday, Goodell was greeted by a smattering of boos as he walked to the courthouse with someone yelling “Liar!’’ according to ESPN’s Hannah Storm. Four minutes later, Brady arrived flanked by four security guards. The Patriots quarterback was cheered and one fan could be heard shouting, “Give ’em hell Tom!’’ as Brady entered the building.
Dozens of fans and journalists waited for two of the NFL’s most famous faces at the front entrance of the courthouse, including some fans wearing deflated football hats they were hoping to sell.
The two sides are expected to reconvene for a second settlement conference on August 19. Berman has indicated he would like the case to wrap by September 4, six days before the defending Super Bowl champions open their season against the Pittsburgh Steelers.
Berman warned that the case could stretch out into 2017 if a settlement is not reached.
“I think it’s safe to say nobody here wants to wait that long,’’ Berman said according to the New York Daily News. “Everyone is of a view that this case can be resolved expiditiously.’’
The Patriots kick off the preseason against the Green Bay Packers at Gillette Stadium Thursday night, and Brady is “highly expected’’ not to play.
Timeline of Deflategate Controversy
Information from the Associated Press was used in this report.