That would be Richard Berman, the U.S. district judge who had ruled that Roger Goodell “dispensed his own brand of industrial justice” in suspending Brady, the New England Patriots quarterback, for four games over his alleged role in Deflategate.
Berman might have been blitzed harder than Brady by the 2nd U.S. Circuit Court of Appeals, which notarized the NFL commissioner’s right to do what he did in clear and simple terms. The court effectively blamed the NFL Players Association for handing Goodell “the sole power of determining what constitutes ‘conduct detrimental,'” and reaffirmed what was obvious to any right-minded and neutral observer about Brady’s decision to ditch a cellphone that investigators had asked to see.
“Finally,” the court wrote, “any reasonable litigant would understand that the destruction of evidence, revealed just days before the start of arbitration proceedings, would be an important issue. It is well established that the law permits a trier of fact to infer that a party who deliberately destroys relevant evidence the party had an obligation to produce did so in order to conceal damaging information from the adjudicator.”
So after a series of blowout losses in the courtroom, Goodell actually got a chance to spike the ball. If the science the league used to convict the Patriots of ball tampering in their AFC Championship Game victory over the Colts was highly questionable, or just plain junk, too many people who should’ve known better lost sight of the circumstantial evidence that led to a common-sense conclusion.
But that doesn’t mean Brady needs to sit out the first four games of the 2016 season. In fact, with Goodell’s authority over disciplinary matters re-established, the commissioner should go ahead and announce the Patriots have been punished enough and make Brady eligible to play the season opener at Arizona.
Start with the penalties already in place. Though Patriots owner Robert Kraft is a wealthy enough man to absorb the $1 million fine, the two docked draft picks — including a first-round selection that would’ve been made Thursday night — represent a significant blow to coach Bill Belichick, who was cleared of wrongdoing in the Wells report, and to Brady, who most definitely was not. That first-round pick could be the difference between Belichick and Brady becoming the first coach and quarterback to win five Super Bowls and remaining in their respective ties with Chuck Noll, Terry Bradshaw and Joe Montana.
Brady has suffered enough, too, in the form of public embarrassment. If you heard how he was greeted at the Super Bowl 50 celebration of past MVPs, you get the point.
Brady brought a lot of this on himself, of course, by making his phone disappear in what Ted Wells, lead investigator, called “one of the most ill-advised [decisions] I have ever seen because it hurt how I viewed his credibility.”
Though Brady’s claim that he routinely discarded cellphones was hurt by the fact that he didn’t, you know, discard the cell used prior to the one in question, Judge Berman liberated the quarterback in September. The judge cited, among other things, the NFL’s refusal to grant Brady access to some witness interview notes and to Jeff Pash, league general counsel and co-lead investigator, and Goodell’s empty comparison of Brady to a steroid user. Hence the offer to Berman of free coffee from a Dunkin’ Donuts owner and Patriots fan in Maine.
On Monday, the federal appeals court ruling probably made Judge Berman wish he’d never heard of The Deflator.
The NFLPA promised to survey all avenues of attack against Goodell “because we know he did not serve as a fair arbitrator and that players’ rights were violated under our collective bargaining agreement.” Somehow, some way, this ungodly legal fight might actually see another round.
Nobody on either side can stomach any more of this. Even though he prevailed in the higher court, Goodell should’ve dropped his appeal months ago because New England’s team sanctions were in place, and because no future courtroom verdict would persuade anyone to change his or her mind on whether Brady cheated. Oh, and because it was in the best interests of the league to put the case to an eternal rest.
“Robert Kraft decided not to pursue his appeal of the team penalties for what he thought was the good of the game, and the commissioner could match what Mr. Kraft did,” Brady’s attorney, Jeffrey Kessler, told ESPN.com in October. “I think it’s a move that would be welcomed by most people in football.”
Goodell opted to fight on instead, and by a 2-1 score the federal appeals court made him feel pretty good about that choice. It’s been a tough go for Roger the unartful dodger, who was also cited by a former federal judge for “abuse of discretion” in the Ray Rice case. Goodell needs a winning season more than the Cleveland Browns do.
But this would be a good time for the commissioner to show a little compassion and avoid running up the score. Just as Goodell shouldn’t have destroyed those Spygate tapes in a different life, Brady shouldn’t have destroyed his phone. The commissioner should ask the quarterback to publicly admit he didn’t fully cooperate with the league investigation, and force him to live with the Deflategate fallout and to try to win another ring without the benefit of those draft picks. And then leave it at that.
In a vacuum, Tom Brady earned his suspension to start the season. In context of the price the Patriots and their all-time great have already paid, Goodell has an easy audible to call.
Let the man play.