On multiple occasions, NFL Commissioner Roger Goodell has described the decision to file an appeal of the federal-court decision overturning Patriots quarterback Tom Brady’s four-game suspension as being not about Brady but about the league’s powers under the Collective Bargaining Agreement. And yet, when it’s time for the NFL to submit paperwork on the matter, it’s clearly all about Brady.
The league got the last word (at least in writing) on the matter Monday, with a 30-page brief submitted to the U.S. Court of Appeals for the Second Circuit, aimed at obtaining a reversal of Judge Richard M. Berman’s decision from September.
At page 13, the NFL makes clear that Goodell chose as a result of the arbitration hearing over which he presided not only to adopt the findings of non-independent investigator Ted Wells but to expand on them, morphing Brady’s alleged “general awareness” of a football-deflation scheme into a conclusion that Brady was directly involved in the effort.
“After considering the Wells Report as well as the evidence that Brady himself introduced at the hearing, the Commissioner found that Brady did not merely have ‘general awareness’ of ball tampering, but actually ‘participated in a scheme to tamper with the game balls after they had been approved by the game officials for use in the AFC Championship Game,’” the NFL writes at page 13 of the brief.
That’s hardly a new development. But it nevertheless underscores that reality that Goodell decided after hearing directly from Brady that Brady was more than generally aware that John Jastremski and/or Jim McNally were taking air out of footballs. Goodell determined that Brady “‘knew about, approved of, consented to, and provided inducements and rewards in support of a scheme ... [to] tampe[r] with the game balls . . . after they had been approved by the game officials for use in the AFC Championship Game.’”
The implicit justification for the finding is that, because the Commissioner has broad power to determine conduct detrimental to the league and broad power to preside over the internal arbitration process, the Commissioner had the ability to make an even stronger finding regarding Brady’s involvement than the investigator did. Essentially, the league contends that Wells -- through a much more detailed and exhaustive process -- failed to crack the case and that Goodell -- via a single day of taking testimony -- did.
The genius of this approach comes from the attempt to wipe away the many flaws of the Wells report by simply supplanting it. Instead of Brady having “general awareness” of a scheme that, based on the scientific evidence and the league’s admitted lack of awareness that air pressure drops when football are taken out into cold, wet conditions, may not have even been implemented in to AFC Championship Game, Goodell found that Brady was directly involved in the scheme. And the many flaws of science and logic contained in the Wells report become conveniently irrelevant.
The genius of the league’s approach comes from the reality that the appeals process can be far less than perfect, with judges and clerks processing dozens of cases and often unable or not inclined to take the time to understand the nuances of each and every case, especially when each and every case entails sharply conflicting views of reality that require plenty of time, patience, and commitment to resolve. Lawyers in these cases count on crafting a sales pitch that will play to the political or philosophical leanings of the judge, providing a path for exiting the maze in a certain way -- even if it requires ripping through the walls of reality.
Case in point: The NFL responds to the NFLPA’s compelling claim that Brady could only be fined, and not suspended, for an equipment violation by launching a superficially-persuasive argument that the parties agreed before Goodell that the uniform/equipment policy doesn’t apply in this case. The NFL then makes a superficially-persuasive argument in support of the notion that the uniform/equipment policy indeed doesn’t apply, using terms that reflect blunt exasperation like “whiplash-inducing change of position,” “chutzpah,” and “temerity.”
To make sense of such strongly conflicting claims, the judges and their clerks will need to put in plenty of grunt work, reviewing and digesting small pieces of a large record of evidence. Sometimes the judges and their clerks are willing to put in that time. Sometimes they’re not, opting instead to view a case through the prism of their pre-existing political and/or philosophical leanings to craft a preferred outcome, and then working backwards to make that outcome fit the facts. (Even if it doesn’t.)
We’re supposed to view the court system as a complex, sophisticated, and ultimately fair process for dispensing justice. In too many cases, it’s a sausage factory, with the links processed not based on their actual ingredients but by the inclinations of whoever is stuffing the casings.
And so the lawyers routinely present briefs that are so different that they often seem like they come from entirely different cases. That’s what has happened in the Brady case.
After the parties get together in court to speak two separate languages for the oral argument, the three judges randomly assigned to the case will have to figure out what to do. While the profile of the case could prompt them to apply the care necessary to work it all out properly, there’s a chance that the meat will be ground up like it is in so many other situations, based not on what’s actually in it but based on how the butcher wants it to taste.
