Judge Berman runs wildcat option: 4 quotes to Brady, NFL mediation and what they mean for the case

The Honorable Richard M. Berman ruled the day in the DeflateGate lawsuit. (Photo: New York Law Journal)

The Honorable Richard M. Berman ruled the day in the DeflateGate lawsuit. (Photo: New York Law Journal)

Judge Richard M. Berman is no instrument for NFL discipline.

That was made clear today as the US district judge peppered NFL attorney Daniel Nash with a series of questions about the independence of the Wells report and the clarity of direct evidence surrounding Tom Brady and DeflateGate.

What to make of it all? Here are some of the key questions and remarks during today’s hearing and what they might mean:

1. “What is the evidence of a scheme or conspiracy that covers the January 15 game? I’m having trouble finding it.”
(Judge Berman)

Many observing the case thought Judge Berman may ask pointed questions about the process the NFL uses to discipline players, the steps to appeals, and the relationship the commissioner has with the collective bargaining agreement in administering league discipline.

Instead, Judge Berman focused on drilling down exactly what specific evidence tied Tom Brady to DeflateGate and whether there was any smoking gun tying Tom Brady to text messages deflating the ball himself or directing others to do so. The NFL was unable to answer to Judge Berman’s satisfaction.

Judge Berman could unravel the NFL’s discipline by focusing on the “fruit of the poisonous tree”1 by cutting off process by seeking the exact ground upon which that process was based – whether the NFL actually proved it could suspend Brady in the first place.p

2. “What matters is the commissioner’s thought on that…his judgment.”
(NFL Attorney Daniel Nash)

Judge Berman asked NFL attorney Daniel Nash several questions keyed on whether overinflated or underinflated balls benefited Tom Brady. Instead of focusing on Tom Brady, Nash shifted his answers to NFL commissioner Roger Goodell. This line of answers squarely put the shoulders of initial discipline on Goodell, not just the appeal itself. It was a misstep that caught Nash off guard and may come back to bite the league.

3. “Why did Mr. Brady not cooperate with the Wells investigation, with respect to providing texts?“
(Judge Berman)

Judge Berman was clearly looking to determine either NFL’s thinking in connecting Tom Brady’s lack of cooperation with the league’s investigation with Brady’s guilt in being involved in DeflateGate, or he was looking squarely into the issue of part of Brady’s suspension itself being lack of cooperation.

The fact Judge Berman said “there are strengths and weaknesses on both sides” indicates he was at the very least seeking to find where the line might drawn in terms of relative fault of Tom Brady and places where a settlement could be reached.

4. “I think it’s safe to say nobody here wants to wait that long,”
(Judge Berman)

Judge Berman was in absolute control of this hearing. He made it a point to drive home cases he presides over rarely go to trial and are only resolved mostly be settlement or by a judicial decree. Both sides have mutually requested an answer by September 4th just before the season starts.

Apparently Judge Berman is unmoved and has served notice it’s settlement or potentially dragged out litigation, something neither side wants.

Bottom Line

The court system is an unpredictable place. That is why there is an adversarial system in the first place. Judge Berman certainly provided a few surprises today and maybe he has set the atmosphere for serious settlement discussions moving forward.

Today, Judge Berman ran an option no one expected and he’s apparently scoring points in the process.

Exavier B. Pope I, Esq. is an award winning attorney, on air legal analyst, media personality, and Fortune 500 speaker. Mr. Pope has over 200+ appearances on air, including: international television on BBC and Al Jazeera English; national television on Fox News Channel, HLN, NBC Nightly News, Al Jazeera America, WGN Morning News, Fox Business Channel, and Huff Post Live; Top 3 Local Media Markets on Fox, CBS, and NBC; international radio on BBC Radio; national radio on ESPN Radio, Clear Channel Radio, NBC Sports Radio; contributed digitally to CNBC, Huffington Post, Jet, and Black Enterprise; and has appeared in other media outlets nationally and internationally. Mr. Pope is represented by top media and literary agency RLR Associates. All opinions expressed are those solely of Mr. Pope.

© 2015, Exavier B. Pope I, Esq.

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  1. I love the term “fruit of the poisonous tree.” And yes it’s used most often in criminal contexts, but the term itself is not codified. It primarily focuses on origin of acts leading to an original bad act. That’s why I used it in this context.

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