NEW YORK -- Judge Richard Berman seemed to commiserate with NFLPA attorney Jeffrey Kessler during final oral arguments, which are being presented this morning at the Daniel Patrick Moynihan U.S. Courthouse.
During Kessler's hour-long summation of points where the NFL went astray in investigating and suspending Patriots quarterback Tom Brady, the topic of "general awareness" surfaced again.
As Kessler stated that, "Player policies say you can't be punished for being 'generally aware,' " Berman nodded vigorously. Berman then asked, "Can Mr. Brady be fined under the equipment policy?"
Kessler answered, "Yes, but the 'generally aware' problem trumps that."
Berman replied, "I read that and find that the 'general awareness' doesn't relate to the Jan. 18 game," to which Kessler said, "Outstanding observation."
Kessler was strident and animated during his oral argument. When Berman asked the question of whether the NFL's 2014 player-conduct policy provided notice that a player is supposed to cooperate with an investigation, Kessler said that that was for off-field issues related to domestic violence or arrests.
Kessler went as far Wednesday as delving into the Wells report and the PSI findings turned in by the firm Exponent. Passing out a hand-out, Kessler said, "I call this hand-out 'Angels Dancing on the Head of a Pin.' "
He went on to say that Exponent's testimony in the Wells report showed that the NFL is alleging, "Mr. McNally went into the bathroom to lower PSI one or two tenths."
Kessler said, "That's like being pulled over for going one or two miles over the speed limit and the officer saying he concluded that by counting, 'One-Mississippi, two Mississippi . . .' "
Berman also seemed to agree that the NFL withholding NFL council Jeff Pash from being questioned during Brady's appeal hearing in June was significant.
In concluding, Kessler said to Berman that, "Last week you asked, 'Where was the 'gate' in Deflategate?' I hope that the gate leads to a fair result . . . All we can ask for is that the NFL plays by the rules."
NFL attorney Daniel Nash followed Kessler at the podium, and while Berman said he could take just as long as Kessler, Nash said he likely wouldn't need it because this is not the time to fight the details.
Nash alleged that Kessler's final argument proves the NFL's point, that the NFLPA is trying to re-open the investigation with Berman as the arbitrator.
As of 11:10 a.m., Nash's arguments were still ongoing.