After seven months, thousands of pages of documents and millions of dollars in legal fees, clarity in Tom Brady’s portion of the Deflategate saga might finally arrive Monday in a Manhattan federal court.
But probably not.
The Patriots star and his nemesis in the case, NFL commissioner Roger Goodell, are due back in front of U.S. District Judge Richard Berman on Monday for a third hearing on Brady’s four-game suspension and perhaps a ruling from the bench that would determine whether he is on the field for New England’s Sept. 10 opener against the Steelers.
Except legal experts don’t expect that to happen, at least not Monday. Even though Berman repeatedly roasted the NFL’s attorney in the first two hearings, the judge has urged both sides, from the moment the league filed its case last month, to reach a settlement and remains irked that they remain dug in.
Berman most aggressively pushed for a settlement at the end of the second hearing on Aug. 19, when he backpedaled in open court from his promise to reach a decision no later than Sept. 4 by saying he shouldn’t be held to a hard deadline because federal court doesn’t normally work that fast.
But if Berman doesn’t send the case back to be heard by a truly neutral arbitrator instead of Goodell and makes a decision as soon as Monday, legal experts predict that won’t end the matter, either.
That’s because whichever side is on the losing end of Berman’s initial ruling is expected to immediately file an appeal and ask for a temporary stay blocking it from going into effect.
So it is conceivable Brady could win on the initial ruling but still have to begin serving his suspension.
Many legal analysts have predicted Berman will rule in favor of Brady based on the increasingly harsh and skeptical tone of his questioning of NFL attorney Daniel Nash in the first two hearings and Berman’s seeming deference to impassioned NFLPA attorney Jeffrey Kessler.
Berman, who can only rule on the procedure of the arbitration and not on the facts of the NFL’s claim against Brady, has appeared most perturbed in court by the league’s initial refusal to make NFL chief attorney Jeffrey Pash — who edited the Wells Report — available for cross-examination at Brady’s appeal hearing with Goodell in June.
But from federal precedent in arbitration cases and by the percentages, Brady and the union still face steep odds.
Since a lopsided and strongly worded Supreme Court decision in 2001 against former major league star Steve Garvey in an arbitration dispute with baseball’s union, decisions vacating an arbitrator’s ruling have plummeted.
Just in the Second District, which is Berman’s district, a mere three arbitrator rulings have been overturned in the 14 years since Garvey’s case. Although Berman was one of those three in a case just this year, that overall figure pales in comparison to the 15 cases overturned in the Second District in a 25-year stretch before Garvey vs. MLBPA.
That shows judges are now incredibly reluctant to interfere with arbitration decisions — especially ones like this that result from collective bargaining — for fear of being overruled on appeal because the Supreme Court has made it clear that even severe misconduct by an arbitrator isn’t enough to warrant overturning the arbitrator’s ruling.