By Mark Hamblett, From New York Law Journal

The NFL’s “Deflategate” dispute is now in the hands of a federal judge after a final round of negotiations failed to produce a compromise between New England Patriots quarterback Tom Brady and league commissioner Roger Goodell.

Southern District Judge Richard Berman said Monday he would rule Tuesday or Wednesday on whether to confirm Goodell’s July decision upholding Brady’s four-game suspension for an alleged scheme to tamper with footballs before the Patriots beat the Indianapolis Colts in the AFC title game in January.

Brady and the NFL Players Association want the decision vacated, saying Goodell was evidently biased and abused his broad power to serve as arbitrator over player appeals. They also argued that the balls were never actually deflated on Jan. 18.

The NFL counters that Goodell was simply doing his job to protect the integrity of the game.

“We did not reach a settlement and the parties tried quite hard,” Berman said Monday after he emerged from the robing room on the 17th Floor, where Goodell, Brady, and their lawyers had a last individual meeting with the judge that ended without a settlement.

Berman’s opinion will be delivered on the brink of the NFL season opener Sept. 10, when the Patriots will raise their Super Bowl banner in Gillette Stadium in Foxborough, Massachusetts—with or without their signature player on the field.

Present Monday in the robing room for the final settlement talks were New York Giants co-owner John Mara and Jay Feely of the union’s executive committee. Mara, chairman of the NFL Management Council, which filed the suit, was present at Berman’s direction.

The two sides, led by Daniel Nash, partner at Akin Gump Strauss Hauer & Feld, representing the NFL and Winston & Strawn partner Jeffery Kessler, have had several meetings with Magistrate Judge James Francis without success.

Berman now must either confirm or vacate the arbitration in its entirety, setting up a possible appeal by the losing side to the U.S. Court of Appeals for the Second Circuit as next week’s kickoff nears.

Berman must decide important questions of arbitration and labor law, including what limits exist on the commissioner’s authority under the collective bargaining agreement between the league and the Players Association, and whether Goodell exceeded those limits.

Brady and the Players Association were widely seen as facing an uphill battle when the league filed suit in New York asking for confirmation of Goodell’s decision on July 28, as federal law and policy call for judges to largely defer when asked to vacate or confirm an award.

But then, at an Aug. 12 hearing, Berman began asking Nash tough questions about Deflategate, such as whether the league had any evidence that Brady conspired with Patriots equipment personnel to deflate footballs below the league minimum 12.5 pounds per square inch, and whether it even mattered.

‘I’m not sure where the ‘gate’ comes from,” Berman said (NYLJ, August 13).

Berman questioned the suspension levied by NFL executive Troy Vincent, who based his decision on the NFL-commissioned Wells Report, where Theodore Wells, a partner at Paul Weiss Rifkind Wharton & Garrison, concluded it was “more probable than not” that Brady was “generally aware” that Patriots game day employee James McNally and another equipment man were scheming to deflate footballs.

“I’m not sure what that means,” Berman said of the “generally aware” standard.

The judge brought more pressure to bear on the NFL at an Aug. 19 hearing when he said Goodell, as arbitrator, appeared to go far beyond the Wells Report underlying the Vincent suspension by concluding Brady orchestrated the scheme and provided “inducements” to make sure the balls were defaulted.

Berman also faulted Goodell for analogizing the discipline of Brady to those for violating the league prohibition on steroids and other performance enhancing drugs (NYLJ, Aug. 20).

Nash defended both the power of the commissioner and the practice, saying Goodell is charged with protecting the integrity of the game on the field and, “When you talk about a fundamentally fair hearing, there’s no question that Mr. Brady got everything and more.”

He also said Goodell was well within his power to draw an inference of guilt from Brady’s non-cooperation on his cell phone. The NFL says Brady “destroyed” his cell phone, but Brady’s version was that he that he regularly got new phones and got rid of his old phones for privacy reasons and that he, in any event, cooperated with Wells.

Still, Kessler conceded at the first hearing that Brady now recognizes that the phone issue “could have been done a different way.”

While Nash argued the parties were not in court to re-litigate the facts of the arbitration hearing, Berman kept coming back to the facts anyway, including the ruling by Goodell that NFL General Counsel Jeff Pash, who had a hand in editing the Wells Report, would not be called as a witness before Goodell.

The case is NFL Management Council v. NFL Players Association, 15-cv-05916.

IMAGE: Tom Brady leaves the Southern District courthouse Monday.

NYLJ/Rick Kopstein

For more on this story go to: http://www.newyorklawjournal.com/id=1202736063966/Judge-to-Decide-the-Fate-of-Deflategate#ixzz3kUhSLvVH