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Andy Kirkaldy: Brady should keep fighting NFL in court

For the record, I believe New England Patriots employees at the January 2015 AFC championship game deflated footballs to the lowest legal limit of 11.5 pounds per square inch preferred by quarterback Tom Brady. Cold weather did the rest, as has been proven by everybody from Lynn, Mass., 7th-graders to Washington, D.C., think-tankers.
That act led us to the saga of Deflategate, the latest chapter of which was written on Monday, when the U.S. Court of Appeals for the Second Circuit reinstated Brady’s suspension.
Let’s take a look back at the NFL’s Deflategate punishment of the Patriots — and penalties it issued to other teams for other infractions. Here are two scenarios courtesy of forbes.com, and then the Deflategate penalties:
1.      “The NFL … announced today that the use of a cell phone on multiple occasions during games in 2014 by Cleveland Browns General Manager Ray Farmer was a violation of NFL rules that prohibit certain uses of electronic devices during games. The league has fined the Browns $250,000 and Farmer will be suspended without pay for the first four regular-season games of the 2015 season.”
Comment: The Browns got an extra, illegal play-caller in the stands for several games.
2.      “Atlanta acknowledged the use of pre-recorded crowd noise in violation of NFL rules during home games throughout the 2013 season and into the 2014 season until the club was notified last November that the violation had been identified. The rule states that ‘at no point during the game can artificial crowd noise or amplified crowd noise be played in the stadium’ … the Falcons have been fined $350,000 and will forfeit their fifth-round selection in the 2016 Draft.”
Comment: These were multiple offenses affecting multiple games. The Falcons pumped artificial noise in when the other teams were trying to call audibles.
3.      Commissioner Roger Goodell in May 2015 fined the Patriots $1 million (the largest team fine in NFL history), stripped them of first- and fourth-round draft picks, and suspended Brady for four games, all for allegedly deflating footballs to lower than the legal limit in one game, something that has never been proven and never will be.
Hmm, one of these things is not like the others.
Is Brady guilty?
Well, no.
On top of the ample and indisputable proof that cold weather was responsible for the footballs’ low pressure, the law firm responsible for the Wells Report, which alleged Brady’s guilt, hired Exponent Inc. to do its scientific research not only on Deflategate, but also for a report the firm authored denying that secondhand tobacco smoke causes cancer. The New York Times led an article on Exponent in 2010 with this deathless prose:
“When some of the world’s best-known companies faced disputes over secondhand smoke, toxic waste in the jungle and asbestos, they all turned to the same source for a staunch defense: Exponent Inc.”
This is the law firm that investigated and then concluded it was “more probable than not” that Brady was “generally aware” that footballs were being deflated on his behalf. It would also like to sell you the Brooklyn Bridge and the Cornwall Swamp.
Oh, but Brady destroyed his cell phone, you say? Well here’s how the NFL works: Last July, profootballtalk.nbcsports.com quoted a humble footnote (No. 11, on Page 12) in Goodell’s Deflategate decision:
“Mr. Brady’s certified agents offered to provide a spreadsheet that would identify all of the individuals with whom Mr. Brady had exchanged text messages during [the relevant time] period; the agents suggested that the League could contact those individuals and request production of any relevant text messages that they retained. Aside from the fact that … such information could and should have been provided long before the hearing, the approach suggested in the agents’ letter — which would require tracking down numerous individuals and seeking consent from each to retrieve from their cellphones detailed information about their text message communications during the relevant period — is simply not practical.”
Let’s translate that: The NFL couldn’t be bothered to find the few relevant conversations in which Brady might have discussed deflating footballs. It preferred to smear Brady by leaking the information that he had “destroyed his cell phone.”
OK, this brings us up to this past Monday’s U.S. Second Circuit Court decision. It overturned a September decision that had voided Brady’s suspension, but not the fine and loss of draft picks.
The court ruled, 2-1, that the collective bargaining agreement (CBA) between the players and the league gave Goodell the powers of judge, jury and executioner. The decision read: “the players and the League mutually decided many years ago that the Commissioner should investigate possible rule violations, should impose appropriate sanctions, and may preside at arbitrations challenging his discipline.”
Well, no one questions that the agreement gives Goodell immense power and discretion over player discipline. Second Circuit Judge Richard Berman agreed when he voided the suspension in September. Berman is also one of 22 judges on the Second Circuit, so if he weighed in the tally would be 2-2.
Monday’s dissenter was circuit Chief Justice Robert Katzmann, who wrote he was “troubled” by Goodell’s comparison of deflated footballs to steroid use and called Brady’s suspension an “unprecedented punishment.”
And Berman in September ruled that Goodell’s decision was “fundamentally unfair,” citing three central points: that Goodell failed to provide Brady notice of the type of punishment he faced; that he failed to allow Brady and players association attorneys to question NFL Vice President and General Counsel Jeff Pash, who was involved in the investigation and helped edit the Wells Report; and that he  refused to allow Brady or the players’ association’s attorneys to review Wells Report documents, thus violating the rules of discovery.   
Yes, the NFL, running kangaroo courts for fun and profit. Even Goodell has to play by basic rules. He didn’t, and the judges on Monday missed that point.
If Brady appeals to the full panel of Second Circuit judges, a second reversal just might be in the cards.

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