A federal appeals court panel indicated Thursday that it was not sympathetic to New England Patriots quarterback Tom Brady’s defense in what is known as the Deflategate case, perhaps signaling that it will overturn the district court’s ruling against the NFL.
The hearing was ostensibly about whether NFL Commissioner Roger Goodell overstepped his bounds as arbitrator in Brady’s appeal of his four-game suspension. Judge Richard M. Berman of U.S. District Court in Manhattan ruled in September that Brady had not been treated fairly and should not be suspended for deflating footballs because he had not been aware that such misconduct could lead to the kind of punishment he had received.
The three-judge panel for the 2nd U.S. Circuit Court of Appeals signaled from the outset that, rather than focusing on the question of Goodell’s authority, they were more interested in the details of Deflategate, including why Brady destroyed a cellphone the NFL wanted to see and whether a four-game suspension was appropriate for tampering with how much air was in a football.
Goodell and Brady did not attend the appeals hearing. Lawyers for the NFL and Brady were questioned for more than an hour, and it appeared that at least two of the judges were skeptical of arguments made by Jeffrey Kessler, the lawyer for the NFL Players Association, which was representing Brady.
Of the three judges on the panel, Barrington Daniels Parker Jr. was the most critical of Brady’s claims. Denny Chin, another judge, also seemed to have reservations about Kessler’s arguments. Chief Judge Robert Katzmann appeared to be the most sympathetic.
“Anyone within 100 yards of this proceeding would have understood the cellphone issue would have raised the stakes,” Parker said. “Mr. Brady’s explanation made no sense whatsoever.”
The NFL has argued that the Goodell was justified in suspending Brady because Brady had obstructed the league’s investigation when he destroyed one of his cellphones, conduct that the commissioner thought was detrimental to the league. Brady said that he routinely destroyed his phones to protect his privacy, and Kessler on Thursday said that the league already had the text messages they were seeking from Brady.
Katzmann said that the league’s list of penalties for various infractions might not be complete and that the Brady case could have been an exception that would have required a penalty not already spelled out.
“The commissioner can be confronted with novel situations that are not per se identified in the roster of fines,” he said. “Isn’t that why the agreement gives the commissioner broad latitude” to rule?
Some lawyers in court on Thursday said the chances were high that Berman’s ruling would be overturned and Brady would again face a four-game suspension.
“It was not a good day for Brady, and I don’t care how you spin it,” Daniel Wallach, a sports lawyer from Ft. Lauderdale, Florida, said. “The questions speak volumes.”
