By Mark Hamblett, From New York Law Journal

Southern District Judge Richard Berman pressed the National Football League to explain Commissioner Roger Goodell’s approval of New England Patriots star quarterback Tom Brady’s suspension for his role in “Deflategate,” an alleged scheme to deflate footballs during a playoff game.

Berman took NFL attorney Daniel Nash to task Wednesday about the league-commissioned “Wells Report,” which concluded it was “more probable than not” Brady was “generally aware” that a locker room attendant deflated footballs after officials had measured them before an AFC championship game against the Indianapolis Colts on Jan. 18.

“So is that it?” Berman asked Nash, a partner of Akin Gump Strauss Hauer & Feld.

With the NFL season looming and Brady’s status for the Sept. 10 opening game against the Pittsburgh Steelers in doubt, Berman is being asked to uphold the four-game suspension levied by NFL executive Troy Vincent and affirmed by Goodell in his role as arbitrator under the league’s collective bargaining agreement.

The judge, while cautioning his questions did not imply an opinion on the strengths or weaknesses of each side’s case, had far more direct and pointed questions for Nash than he did for the attorney for the NFL Players Association, and thus, for Brady, who was represented by Winston & Strawn partner Jeffrey Kessler.

Goodell sat stone-faced for most of the hearing and Brady glowered, staring intently at the space just in front of him and never smiling.

Nash argued that both arbitration and the collective bargaining agreement required the judge to defer to the commissioner’s finding. He said Brady was given a fair hearing before Goodell, who has the ultimate and time-honored authority of commissioners to police their sports.

“The responsibility for the protection of the integrity of the National Football League resides with the commissioner,” Nash said.

But Berman indicated that power was not without limit, and his statements about the Wells Report gave the NFL plenty to think about.

Speaking of the “generally aware” standard, Berman told Nash, “I’m not sure I know what that means” and “I don’t know what to make of that finding.”

Still later, Berman said, “I’m not sure where the ‘gate’ comes from” because the NFL had no direct evidence that Brady knew about any “scheme.”

Nash said there was plenty of circumstantial evidence that Brady was aware of the football deflating—and more evidence that he was less than direct and cooperative with the author of the Wells Report, Theodore Wells, a partner at Paul, Weiss, Rifkind, Wharton & Garrison.

Before the hearing, Berman called the parties into the robing room separately to discuss the case and a possible settlement he has been urging since telling both sides to tone down the rhetoric after the NFL filed for confirmation of the arbitration award July 28.

The hearing was followed by over four hours of meetings to discuss settlement with the judge.

The NFL claims, and Wells found, that several of the 12 footballs broken in by the Patriots—balls that before the game were entrusted to a Patriots locker room attendant who disappeared into a bathroom for 1 minute and 40 seconds—were under the league’s minimum of 12.5 pounds per square inch when measured at halftime.

Kessler began by arguing that the balls were not, in fact, actually deflated. But even if they were, he said, the deflation was the natural result of exposure to the elements, including a lower temperature during the first half of the Patriots 45-7 victory that propelled them to the Super Bowl.

Then for purposes of argument, Kessler assumed they were deflated below 12.5 pounds per square inch, and pressed his case that Brady was deprived of notice by the NFL that he could be subject to sanction for the deflation situation.

Kessler said it was possible the balls were deflated by locker room attendant James McNally during his pre-kickoff visit to the bathroom. But the NFL and Wells ignored the possibility that McNally acted alone “because he thought it was something that would be good for his quarterback.”

Wells and the NFL, however, have asserted that it was incredible to believe that McNally would operate without Brady’s approval.

Throughout the hearing, Berman continually narrowed the focus of the inquiry as to whether there was an actual plot on Jan. 18 in the first half of the Colts game—not on what the NFL believed may have happened in other games.

“What is the evidence of a scheme or conspiracy that covers the Jan. 18 game?” he asked. “I’m having trouble finding it.”

Kessler had more trouble with Berman’s questioning about Brady’s cellphone, which the NFL claims he destroyed on the day he was to meet with Wells. Brady had said he was merely replacing an old phone with a new phone as was his custom and, in any event, he provided Wells with everything he needed.

“Ted Wells testified [at the hearing before Goodell] that he never gave Mr. Brady any notice that if he did not provide his electronic communications, that there was ever going to be any disciplinary consequences,” Kessler said, but the attorney also conceded Brady now recognizes that “it could have been done a different way.”

In court, Kessler called the phone controversy “the most overblown issue in the history of almost 40 years of litigating cases.”

Berman, however, told Kessler, “even you must understand why there had been so much discussion” about the phone and “you can understand why people, rightly or wrongly,” would wonder about it.

The two sides left the courthouse shortly after 5:15 p.m. No settlement was announced.

IMAGE: New England Patriots quarterback Tom Brady enters the federal courthouse at 500 Pearl St. for a hearing on his suspension from the NFL. NYLJ/Rick Kopstein

For more on this story go to: http://www.newyorklawjournal.com/id=1202734583663/Judge-Urges-NFL-Brady-to-Settle-Deflategate#ixzz3ihjSf4Ig