Why Both Parties Should Settle DeflateGate, and how Both Can Win

The  alleged participation by Tom Brady in excessive pre game psi football deflation, known as “Deflategate,” is a mess.

The original appeal on the matter was held by NFL commissioner Roger Goodell. Naturally, he upheld the NFL imposed (i.e., his), $1,000,000 fine on the Patriots, the loss of their upcoming first and fourth round draft picks, and four game suspension of Brady.

Brady appealed the four game suspension in Federal Court, where Judge Richard M. Berman, albeit with tough questions for both sides, has appeared even more skeptical of the NFL’s position; specifically wondering how the NFL went from the “probable” “general awareness” conclusion of the Wells Report investigation to a finding of specific involvement on Brady’s part; which Judge Berman called a “quantum leap.”

The Judge has repeatedly pushed settlement in the matter. And the case appears borderline in terms of its appropriateness for Federal Court – and certainly it is so in terms of practicality.

Even in a settlement conference on Monday that was extremely short – possibly out of frustration at the recalcitrance of two sides (or possibly one) – Judge Berman has continued the position of all but forcing the parties to settle.

Also on Monday the Judge stated he would likely rule by Tuesday or Wednesday, but no later than Friday. Perhaps he hoped this last moment chance might encourage a last moment agreement.

It didn’t. And so the Judge delayed his ruling, hoping again to encourage settlement.

The two parties should listen. Settling would make a lot of sense for both parties, but particularly the NFL. (And if Brady does later get redemption, much like Adrian Peterson and Ray RIce, it won’t get him his games back if he doesn’t get a long shot stay in the interim.)

Yet there are some interesting, abstract legal and quasi legal/ factual questions involved here. And there is interesting recent legal precedent in terms of Goodell’s decision making as well, that also bear on why the NFL should settle.

For instance, does the collective bargaining agreement (CBA) between the NFL players association, and the NFL – which grants the NFL broad if vague powers – therein implicitly grant the NFL an expectation of access to the most private of personal cell phone records for on field equipment rule violations? And, therefore, is a punishment or increase in punishment for such failure consistent with, or a violation of, that agreement.

If the CBA does not, it would be a violation. And Goodell has strongly hinted if not stated that at least part of the suspension has been Brady’s failure to turn over his cell phone for unfiltered micro examaniation of ostensibly all calls, including to private, non football related parties. (Whether a court is bound by that, or can somehow nevertheless attribute all four games to the deflation issue – providing that hurdle is cleared as well – is another matter.)

Also, was Goodell’s leap from the Wells Report finding of a “likely” general awareness on Brady’s part, to a conclusion by him of specific involvement sufficiently arbitrary to constitute an abuse of discretion – as in the ruling handed down by Federal Judge Barbara Well’s regarding Goodell’s conduct in the Ray Rice hearing last autumn.

These are two of the reasons, for instance, why Judge Berman could vacate the four game suspension (if he does, which is up in the air at this point) if the two sides don’t come to a settlement.

Or, although technically the Judge has to rule on the complete four game suspension matter before him – the judge could plausibly vacate two of the games on the creative but here technically workable theory that the suspension imposed by the NFL (but de facto. Goodell) and upheld on appeal by him constitutes two distinct parts: Namely, punishment for likely involvement or undue “specific awareness” of purposefully excessive football psi deflation in one instance. And punishment for alleged “lack of cooperation,” including the refusal of Brady to hand over his cell phone and thus the entirety of his apparently 10,000 or so plus text (and photo) message records, in the other.

That seems less likely, but the Judge could do it; as the case seems more likely to be appealed than not anyway if he doesn’t.

But whether Judge Berman does creatively split it, upholds the four games, or sets it aside – and nobody knows for sure (except perhaps Judge Berman at this point) – the NFL and Brady will both be far better served to settle this.

And given the various hints and positions offered by both parties throughout this process, the certainties and uncertainties involved, the Judge’s urgings to settle this matter, and his implicit feeling – shared here – that this does not belong in our court system – there is a fairly easy settlement which is practically staring both camps in the face.

So I’m laying it out here:

Right now the Patriots are being hammered over this.  And some league owners may like this fact – Texans owner Bob McNair, who left out several key facts in his near anti Patriots and Brady tirade, apparently being one of them.  And the Patriots star quarterback and February 2015 Super Bowl MVP is as of now being forced to sit for a quarter of their season, and they are looking at the very under mentioned but very damaging loss of future first and fourth round draft picks for the team as well.

And it’s ultimately really not good for the league either. This is particularly the case given the ambiguity of what actually happened in “Deflategate”; Brady’s consistent assertions he was not involved; and the fact that while knowing equipment rule violations are unacceptable, to some the NFL may be piling on the Patriots in what is ultimately a somewhat ambiguous matter in terms of what actually happened, and involving what at least some current and former NFL quarterbacks are calling a near witchhunt (“Movin’ The Chains” Jim Miller called it “ridiculous,” for instance).

And it will look worse for the league if Judge Berman rules against them – as has a considerable chance of happening, and probably why in part he keeps pushing settlement.

Last fall a Federal Judge found that Goodell’s actions amounted to an “abuse of discretion” for initially suspending Ray Rice for two games; then reasonably toughening up the NFL’s domestic violence policy and not applying it retroactively to Rice, but then suspending Rice indefinitely upon the emergence of a video that basically illustrated the already known facts – rather, as I argued at the time, than use the video to argue that the physical striking with the hand was “with closed hand and harder and more direct” than the NFL had interpreted it to be, and therefore constituted sufficient new information to simply update the original 2 game suspension under the new 6 game suspension policy and “get it right.”  And which would have been fair, and highly consistent with the new policy – particularly given that while the blow itself was out of control, there are at least half a dozen legitimate mitigating circumstances, and it was otherwise a one time incident.

And the Court found that Goodell had acted aribitrary and abused his discretion for later essentially misleading about what Ray Rice had told him in their hearing, in order to substantiate this new indefinite suspension:  A suspension which not only wasn’t even in keeping with the new policy, it wasn’t in keeping with anything other than a somewhat panicked, over reactive sort of “I don’t know what to do.”

Though Goodell certainly wasn’t helped any by a Baltimore Ravens team that had just cut Rice upon hearing of the video, and falsely giving the country the impression that the video somehow constituted some sort of stunning new information, when in fact it only essentially validated what was already known: Rice, an otherwise model citizen, player and charitable contributor with both time and money to the community and his now wife had been drinking heavily he had suddenly struck her and she fell, hitting her head on the way down.

(The Ravens, who adored Rice, for their part had chosen to interpret it very leniently, and had been wearing rose colored glasses – owner Steve Biscotti later all but said those very words – and they overeacted when their pollyannaish view was shattered by an infamous TMZ video that put Rice’s punch on a perpetual loop for the country to witness 50 times over in practically a matter of seconds, and the victim’s wishes, which in Godell’s weak defense he did originally take into account, propelled and amplified by the Ravens and in particular NFL’s awful handling of the situation, were trampled over by a tidal wave of windswept anger because Rice’s deeds were witnessed; and the rest, including the fact the video barely added info, was forgotten or ignored.)

In other words, last fall a Federal Judge all but came out and said Goodell dissembled, saying his assertion that Rice mislead him was simply not supported, and that his action was “arbitrary,” and amounted to an “abuse of discretion.” And here today is a Federal Judge that, regardless of what he rules on Friday or before (if the NFL and Brady don’t settle this thing) has continually hinted that Goodell’s actions have been awful close to aribtary once again.

The NFL doesn’t lose face if it settles. It may however if it merely accepts Brady’s no game terms or his apparent one game willingness and no coerced confession. Brady meanwhile, given his constant assertions, may lose some face for sitting two games. And far more importantly for him he misses two games in a key defending Super Bowl champs season in the twilight of his still very much competitive career.

And his team is still hammered. The one million dollar fine doesn’t really matter to the Patriots and Kraft. (Brady has even said he would be willing to pay a very large fine in exchange for not having to sit out games.) But not getting draft picks will catch up with the Patriots, who regardless of what they do continue to accomplish or not, will be a slighty lesser team because of it. A fourth and more importantly a first round draft pick loss is substantial. Draft picks are how one builds a team, and they are valuable – particularly the high middle rounds.

And once again the NFL may not be completely thinking this through, as on the Ray Rice mess. Though, admittedly, not in as egregious a fashion, since the Rice response was a somewhat knee jerk almost spontaneous panicked reaction that predictably backfired. And that, along with the Ravens actions, made the NFL look like it specifically had something to hide when it really didn’t. Goodell had screwed up with the initial two game suspension, but the Court system had seen the inside the elevator video, Goodell did genuinely take blame for that initial light suspension even without any video, and announced a new tougher more consistent league domestic violence policy – one which the specificity of the video could have allowed the league, again, to retroactively and easily apply to Rice and it would have been upheld in court. (Whereas it was clear a random arbitrary “indefinite” suspension had a very chance of not being.)

What’s also key, and possibly being missed by the NFL here again is that if it’s the NFL’s or Goodell’s goal to get a coerced confession out of Brady – that’s worthless. To the extent it makes them look good it’s only through stiff arming, which in the long run, if the thing is properly assessed, should only make them look bad. If their goal is to find out the truth, forcing Brady into a confession as part of a settlement isn’t a way to do this, since Brady either won’t do it if he feels he had no relevant direct involvement, or (albeit unlikely), will do it just to get better other terms. (And if he does the latter he’ll use careful, well chosen language that will nevertheless make the NFL feel good.)

The NFL is playing poker and in essence bluffing, and doesn’t really know what cards their opponent holds:

If Brady really did have direct involvement maybe he will crack and acknowledge direct knowing participation and intent, and do so in a way that makes it clear he is coming “clean.” But it seems awfully unlikely, regardless.

And the NFL doesn’t seem to have much else to gain. Even if Judge Berman upholds the 4 game sitdown, it doesn’t mean the NFL acted appropriately. It just means the CBA gives wide latitutde, and a Court is reluctant to step in and say discretion was “abused” over what’s ultimately a highly discretionary, and somewhat unclear factual matter. Plus all indications are that Brady will appeal it – and if he feels his current position is justified, if it’s upheld he should appeal it. (Plus, although probably not a high likelihood, he and the Patriots may get a stay of the four game suspension as well pursuant to an appeal, and possibly pending the language of Judge Berman’s ruling.)

Here’s how both parties save face, and come out on top, and why a simple settlement is practically screaming out: First, numerous reports indicated Goodell was willing to cut the suspension to two games if Brady “admitted guilt.” But Brady can only truthfully admit what actually happened and what he knows; nothing more, nothing less. And this long shot poker game aspect by the NFL that Brady lied to Goodell, and if so Brady will fess up to it over 11.5 psi deflated footballs on the same day some Colts balls were found below 12.5 and his consistent assertions, was just covered above.

So the point is that the NFL was early on willing to accept two games. And now the cost for the NFL of not taking something along those lines has gone up.

Brady, meanwhile has indicated a possible willingness to go for one game: The NFL’s Ian Rapoport, usually a fairly reliable source, reported Monday that Brady was open to serving one game. This is a big switch from “absolutely no games.” One versus two games is also not a big gap. It is, instead, a very solvable gap.

And here’s where the other key comes in, and, at least publicly, it’s being largely overlooked: Two draft picks are a harsh imposition – even more so on top of a multiple game suspension. Brady is a team player. He has even taken a significantly lower salary in order to help with the team’s salary cap in the past, and has expressed a willingness to pay huge fines in lieu of a suspension. True all of that is so he can play (and his immediate family is now also very wealthy). But if he can get something back of value for his team, his town, his Patriots, what’s one more game? Something, but not insurmountable.

And what is it for the NFL to drop the loss of the upcoming 4th round pick? Even less.

The NFL will still have fined the Patriots the loss of a draft pick, but the loss of the far more valuable 1st round pick. Yet for what is seen as barely a round lower than a partial toss-on to many NFL team trades, they get the original two games they were willing to do even before they knew Brady was so dug in. And they get to avoid the chance of this being dragged out infinitum.

And perhaps most importantly the NFL gets to avoids the real possibility of the Court not only slamming them down and vacating all four games (assessing the odds here are hard, but that’s certainly not a long shot, and by some evidence might be as or even slightly more likely than not), but badly embarassing them. Now, when it matters. Not after the fact and barely noticed, as in the Rice and Peterson cases.

And even if Judge Berman rules in their favor, there is still likely to be some harsh words for the NFL, with the ruling only coming down as such due to the extreme nature required for the judge to purposefully set aside such a highly discretionary action on a somewhat subjective – and thus interpretive – set of facts.

In short, the NFL loses very little and potentially saves a great deal; including ending this matter and having some resolution without yet another long drawn out messy looking and very iffy Roger Goodell court case. ( Also, while the owners seem behind Goodell at this piont, and they would be hard pressed to get rid of him given the money he’s made the league, it could also in theory save his job.)

As for Brady? He may win in theory, but still have to serve four games, as the Judge gives him an “I’m sorry but the NFL is within it’s rights” look and upholds the suspension, no stay is granted and an appeals court, now reasonably deferring to the lower Court’s finding, does the same.

Taking two games for the team instead, to win back something key for them – a draft pick –  softens the potential stench of having to sit for possible/likely/highly suspected equipment tampering/rule violataions. And frankly, Brady is getting something back of value for the team. (And backup Jimmy Garoppolo has shown he can play with a reasonable amount of the necessary Patriot QB quarterback cool and decision making in the pocket.) And while he clearly doesn’t want to sit any games, two games isn’t that bad. And if Brady had the willingness to sit one, one more is doable.

The smart negotiation for the Patriots is to make the case as laid out above, but more powerfully, and insist on the first round and the fact that up until recently Brady wasn’t willing to sit a single game even if he had to go to the literal highest court in the land. (All seemingly true.) And that to suspend him, fine the team, and hit them with multuple draft picks on a corporate chosen and possibly heavily corporate biased “independent” counsel, is capricious and arbitrary, and more importantly strongly out of sync with the fact that Brady was willing to have the phone company dig up any and all communications, including texts with any other possible related party; the fact that the Wells Report found a ‘likelihood” of general awareness of a softly deflated football (which is apparently not being alleged as a violation); and that further testing on Colts’ footballs was suddenly and bizarrely ceased that same day once several Colts footballs tested low as well – how did that happen by the way – on one of the two gauges.

Finally, when all else fails (and if all else fails), the Patriots should switch it to the far less team damaging 4th Round pick. so the NFL gets its fine, its suspension – multiple games and in keeping with what Goodell would have originally done – and not only its draft pick take away, but a first round pick – serious business – at that.

The only possible sticking point is one Goodell should let go.  That Brady “didn’t cooperate.”

But again, no coherent legal theory or relevant precedent has emerged that supports why even the CBA creates the inherent right to dig through the most potentialy private and personal of off field records/communications, for the purposes of investigating an on field equipement rule violation.  And that should be emphasized.

As should the fact that Brady has become contrite in this regard. And has also reasonably expressed his belief he didn’t know he faced actual league punishment over his initial responses over a matter he felt (or at least maintains) he had no direct involvement with, and which has to do with football micro pressure variation off of what is already a range to begin with.

Thus, the last piece to this puzzle, if even needed, is a statement by Brady regarding his culpability in matters of cooperation early on, and in general declaring support of the importance of cooperation in any league examination into equipment or related field or rule violations: Something, most importantly, which Brady has already expressed a willingness to do.

Two games. The same team fine. 1 draft pick. Ideally the fourth rounder from the Patriots perspective. But even if it’s a first rounder, the Patriots at least get their fourth rounder back. And the model husband face of their team only sits the first two games – one eighth of the season instead of one fourth. And his settlement likely means nothing inconsistent with what he has already maintained, other than to now solve this problem for his team, and the league, so they, he, the team, the league, the fans, can “move forward.”

The NFL comes out nicely, for the same reasons. And at the least avoids a lengthy and further embarassing drawn out federal court process on the heels of last years messes, and possibly more: Brady possibly getting a stay and dragging this out. Or even more likely Judge Berman suspending all four games and the NFL facing an appeal to even try to get that reversed. (Which in such a case would be unlikely to happen by an appeals court, who will give the Judge wide discretion; and he certaintly would have acted within it on the grounds that at least some of the four games is attributable to non cell phone cooperation which may be outside the bounds of the reasonable expectations of the CBA for something like on field equipment issues.)

And, though it’s not technically on the table, even if the Judge splits the decision since he knows it’s going to get appealed anyway, whereas the parties “might” accept a split ruling (and thus no appeal court has to rule on whether it was appropriate or not), the NFL comes out looking better having settled.

The problem is the NFL probably doesn’t see it that way. And that’s why Judge Berman is right to prompt settlement. It’s not the courts role to step in for parties that have solvable disputes but won’t out of stubborness or pride. Our court system is to settle questions of law and fact. Those are secondary here – and even barely at that.

What isn’t, is an NFL that has lost in the court system and wants to role the dice yet again to see if it can “get a win” while adding to the chances of its losses piling up. And again, in their last losses the rulings were mainly after the fact anyway – and there is no restitution for missed football games – once gone they are gone – so they didn’t really have much impact on what the NFL had done, and very unlike what will be the case here.

And a commissioner in Goodell who may be operating on pride. The owners may like it because Goodell makes them money, and “it’s the Patriots, they deserve it, remember them filming the Jets! Plus they always win.” But settling it accomplishes the same thing, and extinguishes the NFL’s downside while not losing all that much to the upside anyway.

This also presupposes Brady would go two games. Brady might be prideful himself, particularly if he’s less culpable than Goodell (and many others) inherently believe. But if the report is true that he’s willing to go one game, then going a second to get the Patriots draft pick back is the right move. And Brady’s no dope. Explained right – and again, if he was willing to go 1 game anyway – he’ll do it. (The only real problem is who they play in week 2 – addressed at the conclusion of this piece shortly below.)

Not settling this thing is a waste of our courts’ time, and our sports reporters’ time (even if some love it) covering this mess ongoing, instead of covering football. Jimmy Miller’s encapsulation of the whole thing as “ridiculous” might have been over the top – and it’s certainly not a ridiculous matter to violate rules with equipment to get an edge. And it also shouldn’t be tolerated. But it’s not being tolerated.

And while Miller’s position is one end of the spectrum, at this point the NFL’s is near the other. A two game settlement with the loss of a very high draft pick and a fine is still closer to the NFL’s side than to most NFL quarterbacks’ opinion on the matter. (Not counting Mark Brunell). To not take that and muck up our court system and football time with non football created drama (when there’s plenty of real life and relevant drama getting insufficient coverage) is a waste, and foolish. The parties involved may not even know how good most of them have it in life. Get some perspective, settle this fairly, and let’s play some football. With Brady starting in week 3, versus the Vikings.

Fact is, to go up and give the NFL what Goodell was willing to do anyway – miss a second game, which is at the Bills, a team that’s going to challenge the Patriots for the division this year – the Pats will get worse case a 4th round pick back.

If the Patriots and their negotiators can’t get that done, either they need some new negotiators, or the NFL Commissioner needs to some anti stubborness counseling. Or maybe they just need the idea presented to them.

One thought on “Why Both Parties Should Settle DeflateGate, and how Both Can Win

  1. Pingback: Maybe Goodell Should Listen to Me | NFL Football Strategy

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