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Chief Justice’s Dissent Gives Tom Brady Hope on Appeal

Two judges ruled that the “minimum legal standards,” not “perfection,” dictated the NFL’s disciplinary response to Deflategate. A third judge, the chief justice of the 2nd Court of Appeals, labeled Roger Goodell’s process in meting out a four-game suspension to Tom Brady as arbitrary.

The 2-1 ruling in the federal court covering much of New York, Connecticut, and Vermont in favor of the NFL reinstitutes the league’s four-game suspension of the New England Patriots quarterback. But the dissent by Judge Robert Katzmann gives the four-time Super Bowl winner hope that he stands a chance of winning on appeal.

Judge Robert Katzmann pointed to the commissioner’s “shifting rationale for Brady’s discipline.” Specifically, Goodell’s shift in emphasis from a Brady scheme to deflate footballs to a scheme to destroy a cell phone ranks as one such maneuver.

The Bill Clinton-appointed judge writes, “I believe there are significant differences behind the limited findings in the Wells Report and the additional findings the Commissioner made for the first time in his written final decision.” Whereas Wells uses “more probable than not” language to describe an alleged scheme to deflate footballs, Goodell’s final ruling goes much further in concluding that Wells proved such a scheme.

Katzmann describes a suggested quid pro quo between Brady and the ball handlers as problematic. Yes, Brady gave gifts to the Patriots employees accused of involvement. The judge points out that Brady gave many expensive gifts to numerous Patriots employees not involved in the handling of game balls. In other words, providing autographs, memorabilia, and other goods to workers around the team represented normal behavior for Brady.

Perhaps most significantly, Katzmann charges the NFL with breaking its own rules in comparing a transgression involving ball deflation with steroids instead of stickum. Whereas a performance-enhancing drug offense rates a four-game suspension, an offense of using stickum rates a fine of less than $9,000 on a first-time offender. Katzmann says any potential advantage Brady enjoyed in the first half of a 45-7 blowout of the Colts compared more easily to stickum offenses relating to the grip of a ball and not steroid offenses relating to the use of illegal drugs to cheat. In effect, Goodell invented new a punishment for an offense independent of the one dictated by the collective-bargaining agreement between the players and the league.

The case involved the NFL issuing a four-game suspension as a result of an alleged scheme to deflate footballs below the league-mandated limit. Referees discovered a ball inflated below the limit before halftime after measuring the balls to the minimum before the game. The New England Patriots defeated the Indianapolis Colts in the AFC Championship Game in January of 2015 before winning the Super Bowl two weeks later. The NFL admitted an ignorance of the Ideal Gas Law, which informs that balls, tires, and other inflatables lose air pressure in colder weather, in Brady’s appeal several months after the game.

“The Commissioner’s failure to discuss the penalty for violations of the prohibition on stickum, the Commissioner’s strained reliance on the penalty for violations of the League’s steroid policy, and the Commissioner’s shifting rationale for Brady’s discipline, together, leave me with the firm conviction that his decision in the arbitration appeal was based not on his own interpretation of the CBA,” Katzmann concluded in dissent, “but on ‘his own brand of industrial justice.’”

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