Judge Richard Berman wasn't just playing devil's advocate.
During a settlement conference between the NFL and the NFLPA, Berman peppered the league with questions about why executive vice president and general counsel Jeffrey Pash was not produced to testify during Tom Brady's initial appeal of his four-game suspension in June.
While some believed this was a tactic used by Berman merely to nudge the NFL closer to a settlement, it turned out to be one of the major tenets of his decision to vacate Brady's suspension on Thursday.
Pash was a co-lead investigator with Ted Wells and edited the Wells Report, which found Brady to be "generally aware" of some wrongdoing when it came to preparation of game balls before the AFC Championship Game.
"The Court finds that Commissioner Goodell's denial of Brady's motion to compel the testimony of Mr. Pash was fundamentally unfair and in violation of 9 U.S.C. § 10(a)(3)," Berman wrote. "Given Mr. Pash's very senior position in the NFL, his role as Executive Vice President and General Counsel, and his designation as co-lead investigator with Ted Wells, it is logical that he would have valuable insight into the course and outcome of the Investigation and into the drafting and content of the Wells Report."
The league had argued that Pash's testimony during the appeal would have been "cumulative" -- as in repetitve and therefore unnecessary -- given that Wells testified. Berman shot down that notion in his ruling, pointing out that Wells did not know what the contents of Pash's testimony would have been.
"I do not, except to say that they couldn't have been that big a deal because I don't think I heard about them," Wells said during the appeal. "But, you know, Mr. Pash is a very good Harvard-trained lawyer. If you give a Harvard-trained lawyer a report this thick, he's going to have some kind of comment. So I assume whatever it was, it was some kind of wordsmithing."
In response, Berman wrote: "The Court recognizes that arbitrators are 'endowed with discretion to admit or reject evidence and determine what materials may be cumulative or irrelevant.' . . . However, the NFL fairly cannot suggest, without more than the testimony of the NFL's retained counsel, that the edits from Mr. Pash were not significant or that his testimony would have been 'cumulative.' Pl.'s Mem. Supp. II. Mr. Wells acknowledged that he did not know the content of Mr. Pash' s pre-release edits, and thus there was simply 'no reasonable basis for the arbitration panel to determine that ... [the] omitted testimony would be cumulative.' See Tempo Shain, 120 F.3d at 20."
By not allowing Pash to testify when Brady's lawyers requested him, the Patriots quarterback was "prejudiced," Berman wrote.
"Denied the opportunity to examine Pash at the arbitral hearing, Brady was prejudiced. He was foreclosed from exploring, among other things, whether the Pash-Wells Investigation was truly 'independent,' and how and why the NFL's General Counsel came to edit a supposedly independent investigation report . . . Brady was also prejudiced because there was no other witness, apart from Pash, who was as 'competent to address the substantive core of the claim.' . . . As co-lead investigator and senior executive with the NFL, Pash was in the best position to testify about the NFL's degree of involvement in, and potential shaping of, a heralded 'independent' Investigation.
"The issues known to Pash constituted 'evidence plainly pertinent and material to the controversy,' Tempo Shain, 120 F.3d at 19 (quoting 9 U.S.C. § 35 10(a)(3)), and Commissioner Goodell's refusal to hear such evidence warrants vacatur of the Award under 9 U.S.C. § 10(a)(3)."