Things are really heating up in the Tom Brady suspension case. Yesterday morning, ESPN’s Adam Schefter reported that Brady was open to accepting some form of suspension, but only if it can be for failing to cooperate with the NFL in their investigation, rather than admitting guilt to any of the findings in the Wells Report. This is the first we have heard that Brady has been willing to accept any sort of suspension.
Later in the day, Attorneys for the NFLPA and NFL headed back to court. After dealing with a lot of factual findings in the previous hearing, Judge Berman focused in on the process and procedures the NFL used. The legal question in front of the judge at this time is whether the NFL lawfully applied Article 46 of the collective bargaining agreement, not whether Brady is actually innocent or guilty.
It ended up being a tough day in court for the NFL as Judge Berman consistently interrupted the NFL’s lead attorney and almost seemed to admonish him that “there has to be some basic process of fairness that needs to be followed" and warning that legal precedent suggested the NFL could lose its case. Ouch.
The NFLPA’s main legal argument is that the NFL violated the “law of the shop,” which essentially means that the NFL must be consistent in all their arbitration proceedings. The NFLPA is claiming that the NFL violated the law of the shop in this instance by failing to let Brady know that he could be punished so severely for an equipment violation. The NFLPA is arguing that for players, equipment violations of this sort should only result in a fine; a point Judge Berman seemed to agree with in court. The NFL instead punished Brady under the leagues personal conduct policy, which Goodell has carte blanche to do as he pleases for conduct he deems to be detrimental to the integrity of the game, although Judge Berman said that "everything goes to the integrity of the game." The NFLPA further argued that the league never provided notice to Brady that "general knowledge" of an infraction could lead to a suspension and claimed that the process used didn’t allow a fair arbitration system.
Judge Berman beseeched the sides to continue to work out some sort of settlement, and maybe his actions against the NFL in court were meant to force the NFL’s hand after Brady appeared to give in a little from his previous stand of not agreeing to any suspension. It's going to be interesting to see if the NFL does come to a compromise along these lines. On one hand, allowing the suspension for non-cooperation would set a precedent that Commissioner Roger Goodell has powers now to suspend players that don’t fully cooperate with his investigations. This is clearly not in the NFLPA’s long-term interest. They certainly don’t want Goodell to have even more power. On the other hand, if the NFL caves in on this, it could lead to every suspension the league hands down being taken to court.
Judge Berman has indicated that if the sides cannot come to a resolution themselves, he intends to rule on the case on September 4th. However, the NFL doesn't seem scared to lose since they can always appeal the ruling, which allows the suspension of Brady to go forward while the appeal is heard at a later date. For reference, Adrian Peterson actually won his suit against the NFL last year, but the NFL appealed; an appeal that has still yet to be heard. The NFL doesn’t seem to care if it wins or loses; it wants its suspensions to hold.
The only thing that can overcome this is if Judge Berman grants Brady an injunction, allowing him to play while this whole episode plays out in a proper trial that probably won't even start until 2016. Early on in this affair, an injunction didn’t seem likely, since Brady would have to show that he would suffer "irreparable injury" for which there is "no adequate remedy at law,” but after yesterday's events in court, we certainly can’t rule this out. For Fantasy purposes, the best bet is to still plan on Brady missing games, which is the most probable outcome. At least we should have some sort of clarification before the season starts. Strap on your seat belts, it’s about to get very interesting.
