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A lose-lose outcome in Brady case remains possible

Tom Brady And Roger Goodell Summoned To Court In Deflategate Case

Andrew Burton

As the NFL and NFLPA continue to stick to their #DeflateGate guns, many think that both sides prefer rolling the dice on a win -- and accepting the risk of losing -- over voluntarily taking a deal that would include no easy way to save face. For Brady, neither a suspension of any duration nor an admission of guilt would be acceptable; for the NFL, either becomes critical if the goal is to avoid undermining the investigation and the proceedings that culminated in the four-game suspension.

At a time when most think that the outcome in court would be one side clearly wins and the other side clearly loses, Judge Richard M. Berman could still fashion a ruling that both sides hate, and that could finally force the league and union to do a quick deal.

In lieu of affirming the four-game suspension or wiping it out entirely and giving Brady the right to play all 16 regular-season games in 2015 and beyond, Judge Berman could simply vacate the arbitration award entered by Commissioner Roger Goodell and send the case back to him for further proceedings. Judge Berman could do so with specific instructions aimed at correcting multiple flaws from the first appeal hearing before Commissioner Roger Goodell.

First, Judge Berman could order NFL general counsel Jeffrey Pash to testify at the appeal hearing, with the NFLPA entitled to obtain all communications between Pash and “independent” investigator Ted Wells firm, despite Goodell’s prior finding that the attorney-client privilege applies and that Pash should not have to testify. The NFL definitely would not want to do that, especially since Ted Wells admitted Pash reviewed and commented on the supposedly “independent” report.

Second, Judge Berman could order the league to provide the NFLPA with all raw documents from the Wells investigation before the renewed appeal hearing, most notably the notes of all interviews. If there are any arguable conflicts between those notes and the 243-page Wells report, the NFL definitely would not want to do that.

Third, Judge Berman could order the NFL to accept Brady’s offer to provide the phone numbers necessary for reconstructing the text messages he sent and received with the destroyed phone. The NFL already has made it clear that it does not want to do that.

Fourth, Judge Berman could instruct Goodell to insist on testimony from John Jastremki and Jim McNally at the second appeal hearing. Brady presumably would not want that to happen, especially if Jastresmki or McNally are feeling in any way isolated or scapegoated by the notion that Brady knew nothing and at worst they were rogue employees.

Fifth, Judge Berman could indicate that, after a second hearing, he will be inclined to conclude that the Commissioner’s power to protect the integrity of the game allows him to impose a suspension for the obstruction of an investigation, and Judge Berman could make it clear to Brady that, regardless of how the process turns out, Judge Berman believes Brady has obstructed the investigation.

Sixth, Judge Berman could require the entire appeal hearing to proceed as if it were a court proceeding, with media permitted to attend, to observe, and to report on the testimony and the arguments. The NFL definitely would not want that; if Jastremski and McNally would be testifying, Brady probably wouldn’t want that, either.

Seventh, and finally, Judge Berman could require that it all be done by the end of the month, so that he can issue a final ruling before September 4.

That’s the kind of blended outcome that would make everyone upset, for various reasons. It would turn the case into even more of a circus, it would require the NFL to expose plenty of stuff it would rather conceal, and it would make it clear to Brady that, no matter what happens in the second appeal hearing, he’s likely to face a suspension of at least a game or two.

In short, the ruling wouldn’t end the case, but it would likely be far more effective at forcing a settlement than the current posture, where both sides seem to be so unwilling to compromise that they’re willing to flip a coin quickly and end it.

UPDATE 9:40 a.m. ET: Judge Berman also could simply send the thing back for a do-over with the requirement that an independent arbitrator be used. The independent arbitrator would then potential order many of the things listed above.