This is a law-focused discussion of Deflategate legal FAQs based on recent questions I’ve received about a possible settlement between Patriots quarterback Tom Brady and the NFL.
I will also discuss my proposed parameters for a NFL – Brady settlement based on stakeholder interests.
I think the best result for all is a no suspension, with or without a fine. If you want to see my reasoning for that, please skip near the bottom of this post.
Please read my previous post first, Answering Your Deflategate Legal Questions. It was written July 30, 2015 before Judge Richard Berman of the Southern District of New York communicated to the NFL and NFLPA lawyers.
Think of this as the “Law & Order: NFL” – The Deflategate Judge Berman is the New Sheriff recap post. It makes more sense if you read the previous recap.
Why did the NFL and NFLPA agree on an expedited schedule to go to court?
Short answer? Because the judge wants it.
Ignore what a federal court judge says to you at your extreme peril. They have a job for life if they choose, and they make things legally difficult for your client.
Usually, the legal process goes slow. Many NFL and NFLPA lawyer battles have gone very slow in the past.
Judge Berman, as a sentient human being, realizes that slow isn’t compatible to pretty much anyone’s true interests. (And he doesn’t care about your fantasy football team either because boring.)
What does it mean that Judge Berman is encouraging settlement?
Nothing. And everything.
What most judges do is encourage the parties to come to an agreed resolution before trial.
Why? The court system should be the last resort. We, the people, pay for it. If every single dispute went all the way to trial, you couldn’t build enough courthouses.
Theoretically, the parties can often fashion a better outcome than one the judge decides. They know their own risks and interests better than an outsider judge. For situations where the parties need to continue to work together, a mutually agreed outcome can mend fences sometimes better than litigation.
So, that the judge is encouraging settlement is not unusual, and no special meaning should come from him telling the parties to settle.
That said, this case is a particularly good candidate for settlement because it is dumb. If you don’t think this is dumb, try explaining it to someone who knows nothing about football.
The legal issues are interesting, but the underlying dispute is profoundly stupid and avoidable.
Generally speaking, judges don’t like dumb controversies that the parties would be better off settling themselves. And this case the judge wants out of his court, given how much he is emphasizing settlement and a quick resolution.
The best judges set clear expectations for the parties, and in some ways, put them in the adult version of time out.
How did Judge Berman put the parties in time out?
Judge Berman communicated this well in his first order to the NFL and Brady’s lawyers. The three main points he was making to the lawyers?
1. “Tone down their rhetoric.” – He also refers this to being “appropriate” and “helpful.” He reminds both parties of the rules in his particular court, and adds, “The earth is already sufficiently scorched, in the court’s view.”
I don’t know this judge, but I already like him. High profile legal matters are brutalizing for the people involved in them. Court filings, leaks, barely-relevant-but-publicly-embarrassing information can be so damaging. And the parties involved, as they are litigating a case, can be very limited in what they can respond to publicly.
Sometimes the parties need to step away from their anger, breathe, and work beyond that to see what is truly in their mutual interests. A time out.
2. Work on settlement “forthwith.” – Judge Berman put that in bold, to tell the parties he has his really serious face on about this. “Forthwith” is the fancier judge word for “do this now now now yesterday.”
3. Bring it on. – This is the unusual part of the order. Judge Berman isn’t oblivious to the public interest in this case or when the season starts. He has told the parties that he is prepared to take on this issue right now. Either through litigation or settlement between the parties.
He’s probably like us, and would rather read and watch sports on TV than blurgle lawyer stuff (that likely makes his eyes roll around into the back of his head).
So what did the NFLPA Jeff Kessler letter mean?
Some people asked me whether the Kessler letter with the proposed schedule meant that the NFLPA’s position was weak.
Nope. This is just due dates for different events that were agreed on by both parties. That’s it.
Like with many cases, it just means that the parties listened to what the judge wanted them to do. Judges routinely want the parties to come up with a mutually acceptable timeline for key due dates. Because they listened to the judge, they made that timetable blisteringly fast compared to how normal legal cases go.
Wait. The Kessler letter says no additional discovery is necessary. What’s up with that? 
Discovery can take some time. The judge is ready to hear things now. You don’t want to be seen by the judge as the side that is slowing things down.
And as I mentioned in my previous Deflategate legal explainer, at this point in the litigation, the detailed facts become less relevant than how they relate to the legal standards that the judge needs to assess to see who wins.
The judge isn’t deciding whether Tom Brady deflated footballs. He is deciding whether he should vacate Goodell’s arbitration ruling based on what his view of the law is on this matter.
Both the NFL and Kessler seem to believe that they have enough of a factual record from the arbitration to argue the legal standards to the judge.
So what does Judge Berman’s Order in response to this mean?
Mike Florio at PFT already did a good explainer of the details in his post, “Judge Berman takes full control of Brady case.”
The short version? Hey, settlers, why don’t you settle down and settle this? Srsly. Settle this. Settlely yours, Judge Wanting You To Settle This.
You know he is serious because of the quick time table, how relatively short the briefing limit is. And most importantly, making Roger Goodell and Tom Brady attend the status/settlement conferences in person. In front of Judge Berman, and not a magistrate judge. (This is sort of a big deal).
Encouraging them repeatedly to settle before the conference, with Magistrate Judge James C. Francis IV.
The dates that Berman gave need to be confirmed by the parties on Monday, August 3, 2015 at 3:00 PM.
If the case goes to the judge for his decision, and Brady loses, then what?
He would appeal. The issues to the NFLPA are too important. He could either serve the suspension immediately, though I think he would immediately try to get an injunction that would allow him to play.
Don’t asking me which games because as I’ve said, once you are in the court system, you lose a lot of control.
And if the NFL loses?
Some depends on what the judge orders. Likely an appeal. It has become odd in the NFL’s appeal of the Adrian Peterson matter.
I really hope this settles.
So, what do you think the settlement between Tom Brady and the NFL should be?
A minor note on my personal biases for people who skim long blog posts because life is short: I am a Texans fan, and a suspended Tom Brady is likely a good thing for my favorite team, not a good thing for my enjoyment of watching the best players play.
That said, if all of us are looking for something that is good for the game, I need to do what some coaches do in training camp. Strip the names off the backs of the jerseys, and come up with a reasonable basis for settlement of both sides.
The best settlement for everyone would be a zero game suspension, no admission of guilt, maybe a fine if Tom Brady feels like giving to charity to make this go away. NFL fines go to charity.
In the Tagliabue Bountygate arbitration ruling, he ended up eliminating all the suspension, considered a fine but then rejected it.
Why? In his words:
“To be clear: this case should not be considered a precedent for whether similar behavior in the future merits player suspensions or fines; rather, I have decided not to issue fines this time for the reasons stated in this decision and the sake of the best interests of all involved in professional football.”
OK. Not precedent. But very smart. Taglibue in this ruling strikes me as a person who is trying to put together a ruling based on reasoned principal versus anger.
His main reasoning for deciding this was that players didn’t know that something that was normally fined was going to result in multi-year investigations (with reputation-tarnishing leaks that would later shown to be wrong) and suspensions.
I like what is in the “best interest of all involved in professional football,” because I am part of that all.
The key to coming to a settlement that both sides agree on is to start with areas of commonality, and evaluate what is drop dead essential to the relevant stakeholders.
What are areas of likely agreement between NFL and Tom Brady for settlement purposes?
1. They dig football.
2. Deflategate hurts football. This controversy does not make the actual game of football better.
3. Suspensions in general do not make the game of football better.
4. This controversy has not reflected well on either the NFL or Brady. The process itself is part of their punishment.
5. Suspensions aren’t necessary for deterrence because though the NFL didn’t make this a big deal before at all, they do now, and everyone knows it.
6. Uncertainty of when the suspensions will take place are bad for the integrity of the game. (As it is, folks are trying to pin me down on what the parties will do so they can place bets. I don’t know, you degenerates).
7. They would like a do-over. Given what they know now of everything that went on, both of them would probably like a do-over of various actions since the AFC Championship.
The NFL has already started some of that do-over by coming up with a protocol for dealing with game ball inflation.
8. As I said in my previous Deflategate legal answer post, I don’t know if Tom Brady did or did not maybe have general awareness of a scheme to deflate footballs. And unless you are Tom Brady, you don’t know either. He testified under oath at the arbitration that he didn’t.
The NFL is saying IMO he did maybe have general awareness, so hammertime.
I’ve seen the entirety of that debate, and it is tiresome. Think of this point 8 as being an agree to disagree.
9. They agree that the NFL is “required to give proper notification” of player discipline. How do we know that? Because Roger Goodell said so in just those words (pg. 18, pdf) in the Ray Rice discipline matter.
10. It is stupid that the federal courts of The United States of America are being asked to rule on what is essentially began an equipment violation that other sports leagues deal with as penalties and/or fines.
Oh, and the NFL deals with this sort of stuff as fines too if you actually did the tampering, not if you generally knew about tampering. Unless you are Tom Brady.
I mean, I get why the NFL lawyers filed in court pre-emptively to secure venue outside of Minnesota, but even the NFL, if they are getting real, has to concede this is dispute is a real dumb use of judicial resources.
11. If they go to trial, and not resolve it themselves, they lose a lot of control over the outcome and timing. This is bad for both the NFL and Brady and that risk is hard to evaluate. This list goes to 11.
What are the parties key interests?
You can’t determine what the parties are willing to give away without knowing their key interests.
1. Number of games suspended.
Why the NFL cares about suspension length
NFL cares because they like being tough on intregitude or something. I’ve looked at the arbitration ruling, and frankly, I don’t know how the NFL came up with four games versus two games versus eight games versus indefinite ban versus going through the spanking machine at NFL headquarters.
The number of games that Brady is suspended really doesn’t matter to the NFL, other than making the NFL and Roger Goodell personally look weak by caving. Whoopdedoo.
I hate ego-type issues over the greater good. Some think his outrageously tough punishment of the Patriots and Brady was partially in response to the scathing GQ Article that referred to Patriots’ owner Robert Kraft as “the assistant commissioner.”
When you go through a settlement process, a magistrate can help guide the discussions by making you articulate out loud your reasons for why something is important to you. I am not sure the NFL can do this regarding suspensions.
They may say they want to suspend him to encourage players to cooperate with investigations, but even Ted Wells said that Tom Brady was very cooperative. The one thing he wasn’t cooperative with involved a rightful discovery dispute between lawyers.
They don’t need to suspend him to prevent this from happening again because, everybody now knows that the NFL cares about football air pressure.
Fans will never agree on suspend, don’t suspend, partial suspend, whatever nonsense people think is good. Whatever the settlement is, some contigent will be mad because sports causes feelz.
What I know for certain is that ALL fans would prefer their favorite players not get suspensions for maybe being totally innocent or maybe having maybe general knowledge of rule violations usually punished by fines.
Why Brady cares about suspension length
Tom Brady obviously has a significantly higher personal stake about suspensions than the NFL does as an organization.
Tom Brady cares because a NFL players career is uncertain. We don’t know how many games he has left in his career. Or even if he makes it through training camp without injury. Hate to add that point but flukey stuff happens.
He knows better than anyone what can happen when the drafted quarterback finally gets an opportunity to play, and displaces the veteran.
He knows not missing games is important to his coaches, teammates, fans.
He doesn’t want this process to happen to other union members.
Timing of suspension is important to him because he certainly doesn’t want to miss games at a crucial time in the season.
It is uncertain how he values no suspension versus reduced suspension, though it would really be hard to swallow suspensions if you didn’t do squat.
2. Fines.
Tom Brady is not a poor man. Compared to the NFL, he is a pauper.
The NFL doesn’t get the money. It goes to charity. Brady might decide he is willing to offer some money as settlement just to avoid the legal risk of a bad result, and get back to playing football.
Though Tagliabue was willing forgo fines and suspensions for the “best interest of all involved in professional football,” Goodell was reported not to have liked that result much. I’m not sure what getting a fine that goes to charity gets him, but he tends to like those.
3. Guilt admission.
This is a sticking point. I can’t contemplate a settlement that involves any admission of guilt by Brady, if Brady maintains under oath that he didn’t do squat.
NFL wants validation that it was right to go hard after him. Particularly since Goodell stuck it to the Patriots so hard.
This again is something that has more value to Brady than the NFL.
So what should the general structure of the settlement be?
If you look at what the parties agreed view is, and how important different issues are to them, it would seem as though the principled approach would be this mutually agreed structure:
1. No admission of guilt by Tom Brady. (More important to Brady. Ego issue for NFL).
2. No fine. (Like a similar situation in Bountygate) or some fine but only as a way to make suit go away but no guilt admission. (The least important thing to Brady but easier for me to give away someone else’s money).
3. No suspension. (More important to Brady. Ego issue for NFL)
4. No use of anything in this dispute as evidence in future disputes. (More important to NFL).
5. Some blah blah about NFL and NFLPA working together to educate players about whatever rule blah blah. (Important to both. The NFL does a better job when it chooses to inform v. punish).
Hey, why shouldn’t they reduce it to 1 or 2 games?
Yes, 4 games suspension is worse than a 1 game suspension or a 2 game suspension. But the original 4 game suspension was just some big made up number out of thin air. No player has ever been suspended for this kinda ish. And Tom Brady isn’t going to want to be the first one. And he does have very good, viable claims he can make to the judge if settlement doesn’t occur.
It is really hard to justify out loud why 4 games is the right amount and do it in a principled way. The legal pressure the NFL is putting on Brady is that arbitration hearings are hard to overturn. This is true. But at some point, settlement is not so much about the past, but what is in their current interests. And most of the interests of keeping the suspension at 4 are ego ones and not game improvement ones.
Brady can say, “I know I have legal risk but I am not settling because I didn’t do anything. Or I am settling for a fine to make this go away but no admission of guilt.”
The NFL can say, “I know I have legal risk but I am not settling because of um I need to Make This Right™…um er integritude… the doctrine of cheater cheater pumpkin eater??!?”
Sometimes trying to settle things is really weird.
Can Brady/Patriots file a this, that, or the other thing additional lawsuit because of reputational damage?
Anyone can file a lawsuit. In this context, likely a loser.
There’s really no point talking about this any because the judge at this point is signally the parties to chill, work hard at settling. More lawsuits are not chill.
But if I hate the Patriots, and I think they are big cheaters, why should I be okay with no suspension and no guilt finding?
Because this could easily happen to the players on your team.
Various -gate players probably had no idea what they were doing (or not doing) was a Goodell-hammerable offense. This is explained well by Paul Tagliabue in his order vacating the Bountygate punishments.
“In this context, confronted with the events here [Bounty allegations and obstruction], Commissioner Goodell correctly set out aggressively to address them. But when an effort to change a culture rests heavily on prohibitions, and discipline and sanctions that are seen as selective, ad hoc or inconsistent, then people in all industries are prone to react negatively — whether they be construction workers, police officers or football players. They will push back and challenge the discipline as unwarranted. As reflected in the record in the present appeals, they will deny, hide behind a code of silence, destroy evidence and obstruct. In other words, rightly or wrongly, a sharp change in sanctions or discipline can often be seen as arbitrary and as an impediment rather than an instrument of change.”
Bountygate was similar to this one in that Goodell tried to do various suspensions of players of various lengths without really any principled reasoning as far as pretty much anyone could figure out. (As an aside, I’m pretty sure the players did not agree with the entirety of the Tagliabue factual record, but they agreed with the result.)
But re-read that quote from Tagliabue. He was warning Goodell. Different controversies will keep happening because Goodell’s punishments are very reactive and unnecessarily confrontational. They beg for legal problems. That’s no way to run a business.
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Have any additional questions, comments? Put them below.
It’s sometimes hard to talk about legal issues to a broad audience without simplifying to the point of complete inaccuracy. So if you have any Deflategate questions of a more or less detailed nature than above, please let me know.   I also welcome thoughts from other lawyers, and it is nice when you add thoughts from your particular expertise. My comment community is usually a very good one. Sometimes the comments are so good, I create new blog posts just to highlight how good some of the comments are. Unusual, I know.
(Please note. This is my blog, it has my name on it, so I have rules. For those who don’t know, I approve each comment individually and will approve most stuff unless it is abusive or spam. Unlike some places on the web, I strongly prefer for people to attack arguments and NOT people. What that means is that I do not want any personal attacks against people you dislike or other commenters. Avoiding personal attacks make the comments helpful to others’ understanding and doesn’t derail conversation into middle school neener neener stuff. This is a forum to create reasoned commentary and questions on the legal issues and not for trash talk because there are many other places on the web for that, and I do not want to facilitate it. In addition, since the issues right now are mostly ones of process and law, I am not interested in this being a forum for discussing the detailed facts unless they have some relevance to the process issues which are the main ones relevant in the on-going court case. Please read the comments before you comment because I may have already answered your question. Think of this as fair notice. Thank you kindly for your cooperation.)