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How Tom Brady can still beat his DeflateGate suspension

NFL commissioner Roger Goodell refused to overturn or reduce Tom Brady's four-game suspension. Needless to say, the fight over DeflateGate is far from over.

Mark J. Rebilas-USA TODAY Sports

"I think we put in a very compelling case," Tom Brady's lawyer Jeffrey Kessler told the media as he left the building in June following his client's appeal of a four-game suspension over his role in DeflateGate. Roger Goodell did not agree. The NFL commissioner and discipline czar opted to keep Brady's punishment in place in a ruling handed down on July 28, 2015, more than a month after the appeal hearing.

The latest decision aside, this saga isn't over by any means.

What happens now?

Brady and the NFLPA are expected to challenge the league's decision and sending DeflateGate to a Federal court. According to earlier reports, the union believes that they have a good chance of getting Goodell's decision overturned.

So what's Brady argument in court?


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The first point Brady's team is expected to hammer in court centers on Goodell's role in the process. The NFLPA wanted Goodell to recuse himself from hearing the appeal and appoint a neutral third-party arbitrator. That stemmed, in part, from the union's desire to call Goodell as a witness, in part to question his move to delegate the initial punishment to VP Troy Vincent.

The union claims that Goodell's role as arbitrator over the appeal violated Brady's due process. Furthermore, they can also argue that Troy Vincent did not have the authority to hand out punishment to Brady in the first place, and he was designed to do so to give Goodell the sheen of impartiality in the inevitable appeal, a violation of the conduct policy as spelled out in the 2011 collective bargaining agreement.

In a statement released after the NFL announced its decision, Brady's agent Don Yee expanded on their criticism of Goodell's role in circumventing due process. He claimed that the league did not give them enough time to examine witnesses. He also questioned Ted Wells' independence in the investigation, and said that Wells denied their request for documents.

Brady and the NFLPA could also fight the decision based on five other factors:

  1. The rules governing equipment handling apply to personnel not players.
  2. Brady's "general awareness" of a plan to deflate footballs has no merit as a legal standard (i.e. they couldn't conclusively prove his actual involvement).
  3. Wells used unproven and unestablished standards for measuring the inflation levels of footballs.
  4. Brady received a punishment without precedent because he was unaware of the specific rules.
  5. Previous efforts to tamper with footballs did not result in a player suspension ( the league sent the Vikings a letter, and that's it, when they were caught tampering with footballs).

What about his phone?

In the spring, Brady was asked to share any emails, text messages or other electronic communications with Ted Wells. He refused, even after investigators offered what Vincent called "extraordinary protections" -- they were willing to let Brady's lawyers turn over printouts of relevant messages -- in citing Brady's refusal to fully cooperate as a factor in handing down the four-game suspension. Goodell's decision to uphold the suspension revealed that Brady destroyed his cell phone before meeting with investigators (Brady claims he does this every four months anyway).

Whatever perception the league and the public may have of Brady's refusal to share his phone records, the collective bargaining agreement does not require players to turn over their phones, text messages, emails, etc. The league's discipline process does not grant subpoena power.

Don Yee, Brady's agent, cited that in May when he explained to the media why they did not hand over Brady's records. He also said that league investigators asked for a "very, very wide" scope of text messages. Further, he claimed that whatever they did hand in would have been met with skepticism from the league.

There's also the matter of precedent it would have set for future disciplinary procedures with other players. The union's been fighting the NFL over its vague, arbitrary personal conduct policy. Brady turning over his phone records wouldn't have given Roger Goodell the ability subpoena players, but it would have further concentrated the commissioner's power.

The statement from Brady's agent released after Tuesday's decision says that they did share "an unprecedented amount of electronic data" with investigators.

Tom was completely transparent. All of the electronic information was ignored; we don't know why. The extent to which Tom opened up his private life to the Commissioner will become clear in the coming days.

Where will the case be heard?

Initially, the NFLPA had reportedly planned to file the case in a Federal district court located in Massachusetts or Minnesota. The reasoning being that it was either something of a home-field advantage or a more labor-friendly court. Given the possibility of the decision being appealed, they're also expected to factor in which appeals circuit it would go to in that case.

Maybe the union shouldn't have telegraphed their play call. The NFL reportedly filed a complaint in a Manhattan Federal court seeking to uphold the suspension, according to a report from Scott Soshnick of Bloomberg. Now, the two sides may have to fight a jurisdiction battle before the case can go forward.

How long will this go on?

Good question. The short answer is: nobody knows. Whatever court ends up hearing the case, this won't be the only thing on its docket. It could be resolved in a few months, or it could go on for more than a year. Nobody knows.

Is there any way Brady plays in Week 1?

Yes. Brady's legal team is expected to seek an injunction that set aside the suspension until the matter could be decided in court. That would allow the Patriots to have their quarterback in the lineup when the season starts on Thursday, Sep. 10. (The Patriots open the 2015 season with a prime time game against the Steelers at Gillette Stadium).

Precedent is on Brady's side for getting the injunction, and the bar is considered relatively low for getting one. His lawyers just have to demonstrate "irreparable harm" done to their client.

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