NEW YORK (CBSNewYork/AP) — Federal appeals court judges seemed likely to restore New England Patriots quarterback Tom Brady’s four-game suspension for the scandal known as Deflategate after spending time Thursday shredding some of his union’s favorite arguments for dismissal.
The 2nd U.S. Circuit Court of Appeals in Manhattan gave a players union lawyer a tough time, with Circuit Judge Denny Chin even saying evidence of ball tampering was “compelling, if not overwhelming” and that there was evidence Brady encouraged it and supported it.
“How do we simply second-guess a four-game suspension?” he asked attorney Jeffrey Kessler of the NFL Players Association.
The appeals court did not immediately rule, but it seemed to lean heavily at times against the union’s arguments, raising the prospect that the suspension Brady was supposed to start last September may begin next season instead.
The three-judge panel seemed receptive to the NFL’s argument that it was fair for Commissioner Roger Goodell to severely penalize the star quarterback after concluding that he tarnished the game by impeding the league’s investigation into deflated footballs, including having an aide destroy a cellphone containing nearly 10,000 messages. The league had concluded that deflated balls were used when the Patriots routed the Indianapolis Colts at the January 2015 AFC championship game before they went on to win the Super Bowl.
Judge Barrington D. Parker said the cellphone-destruction issue raised the stakes “from air in a football to compromising the integrity of the proceeding.”
Chief Judge Robert A. Katzmann noted that the fact that commissioners can be confronted with a novel situation might be why the language in the players union’s contract agreement with the league “gives the commissioner wide latitude to deal with conduct detrimental” to the game.
The judges did not treat the NFL gingerly either, with Parker questioning whether Goodell took his authority too far by designating himself the arbitrator and making findings that went beyond a report prepared by an investigator the league hired.
“Goodell is effectively the judge, the juror and executioner,” Parker told NFL attorney Paul Clement, though he quickly added that executioner “is not the right word.”
Clement said Goodell was the right person to preside over the proceedings because the dispute began as a conflict between two teams over ball deflation.
At another point, Parker said Brady’s lengthy suspension seemed at “first blush a draconian penalty” for deflated footballs.
“What’s the advantage you get from an underinflated football?” he asked.
The judges also questioned why deflating footballs would warrant a severe suspension.
But they seemed to answer that question themselves as they noted repeatedly that it may well be within Goodell’s authority to punish a player if he concludes that the player interfered with an investigation and thus engaged in conduct detrimental to the game.
After Goodell rejected Brady’s appeal of the four-game suspension, the league went to federal court to get a judge’s approval of its handling of the case. But Judge Richard Berman ruled against the NFL a week before the season began, eliminating Brady’s suspension.
The NFL appealed. In court papers, NFL attorneys have called U.S. District Judge Richard Berman’s decision “inexplicable.
In their filings, NFL Players Association lawyers said NFL Commissioner Roger Goodell was making a “sweeping grab for power” when he upheld the four-game suspension in July.
Clement urged the court to rule quickly for the good of the game.
“It would be an awful shame if this issue has to hang over the league for another season,” he said. “End it now.”
Neither Goodell nor Brady was in court Thursday. A decision could take weeks or months.
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