Attorneys for Tom Brady and the NFL Players Association (NFLPA), filed a response to the NFL’s appeal of Judge Richard Berman’s decision in favor of the New England Patriots quarterback in the Deflategate case.
The brief argues that NFL Commissioner Roger Goodell ignored stated discipline on tampering with equipment, made up the rules as he went along on Brady’s alleged failure to cooperate, shielded NFL counsel Jeff Pash from testifying, hid its investigative files from Brady’s legal team, violated the collective-bargaining agreement by farming out discipline, and deceitfully termed Ted Wells an “independent” investigator before admitting the case’s investigator actually acted as counsel for the league.
“Goodell denied Brady access to the investigative files of Paul, Weiss—whose role evolved from ‘independent’ investigators to NFL’s retained counsel,” contends the 63-page not-so brief, adding that “nothing could be more unfair than having the NFL’s attorney—who was able to consult the investigation’s library of notes—cross-examine Brady and his expert witness, while the NFLPA and Brady’s counsel were denied access to the same materials.”
The case stems from NFL referees discovering air pressure in New England Patriots game balls below the league minimum at halftime of the AFC Championship Game in January. The officials tested four Colts balls, which also lost pressure, to New England’s 11. In the appeal of the league’s four-game suspension meted out to Brady, Troy Vincent, the NFL’s vice president of football operations who meted out the initial punishment, admitted that not until after the controversy erupted did the scientific truth of balls losing pressure due to weather conditions become known to him.
Regarding Goodell outsourcing disciplinary authority to Vincent when the CBA entrusted it to the commissioner, and his subsequent ruling that his delegation represented no violation of the CBA, Jeffrey Kessler and company contend: “Any reasonable person would conclude that Goodell could not impartially decide the CBA legality of his own delegation.”
Brady’s lawyers dismissed the notion that Judge Richard Berman remained “star struck” by the quarterback’s “celebrity” when he ruled in favor of the Super Bowl MVP. The brief repeatedly notes that the league promulgated a fine as the punishment for tampering with balls and hitherto did not suspend players refusing to cooperate with league investigations of them.
“No player in NFL history had ever received a suspension for alleged football tampering or failing to cooperate with a League investigation,” Brady and the NFLPA’s attorneys argued in Monday’s brief. “Goodell, however, issued an award affirming a four-game suspension of New England Patriots quarterback Tom Brady on this basis. In so doing, Goodell never even mentioned the applicable and collectively bargained penalty—a fine—the only penalty of which the NFL had given notice to players. Instead, Goodell applied his own ultra vires remedy in defiance of the CBA.”
The NFL must file its response in the next two weeks. The case hits federal courts once again in March.