In just a few minutes, at the NFL office at 345 Park Avenue, Tom Brady will begin his appeal of his four-game suspension for his role in the Patriots’ ball-deflation scandal. And while drama and reality dictate that I say something like “he’ll be facing off against Roger Goodell,” that’s not technically true. Goodell won’t be across from him. Goodell will be at the front of the room. The NFL Commissioner is in charge of this hearing: the man who handed down the suspension is once again the only person whose opinion matters.
Brady will be accompanied by his lawyer, Don Yee; NFLPA general counsel Tom DePaso; and outside counsel Jeffrey Kessler, who has made much of his career going after sports leagues in high-profile cases. On the NFL side will be NFL general counsel Jeff Pash; vice president of law and labor policy Adolpho Birch; and labor relations counsel Kevin Manara.
Also in the room will be Ted Wells, whose report formed the basis for Brady’s suspension. Wells will be there to answer questions from both sides, and oh to be a fly on the wall when Brady’s team goes after him. There is no smoking gun in the Wells Report; there is strongly suggestive evidence that points the finger, if not at Brady, then in his general direction. There is potentially dodgy science indicating deflation, and while the NFL believes Brady was aware of and specifically asked for his balls to be doctored to his specifications, it can’t offer inescapable proof. That’s what the NFL is after today.
While Brady is here to reduce or vacate his suspension, the league may have even more at stake. Few inside New England believe this wasn’t a railroading; fans everywhere have serious questions about the league’s handling of Ballghazi. Goodell desires vindication. And the only way to achieve that is to get Brady to tell what he knows, something he very pointedly did not do for Ted Wells.
The league will want Brady to functionally cop a plea: either admit his involvement, or at least turn over previously withheld evidence that would firm up the league’s case against the Patriots. The NFL has long made it known it wants Brady’s text messages and emails, and continues to hold their absence as a cudgel:
As far as the league is concerned, Brady’s reticence is incriminating enough. That wouldn’t fly in court, but, clearly, this isn’t court. Goodell is Brady’s prosecutor, judge, appeals judge, and jailer. Despite that power and process having been enshrined in the NFL CBA since the ‘60s, it’s feeling increasingly untenable. The presence of Kessler, who’s gone after the league in antitrust cases before, is a strong sign that the NFLPA sees an opening.
Goodell, too, may be feeling vulnerable. He hasn’t appointed himself to hear a player’s appeal since he recused himself from the Saints’ bounty-scandal hearings back in 2012.
The league considers the commissioner’s ultimate authority as non-negotiable—it wasn’t even on the table during contentious labor talks in 2011. But there is an outside chance that the union doesn’t need to wait for the next round of CBA negotiations to challenge Goodell’s power. Should Tom Brady lose his appeal, he may very well take the NFL to federal court. A lawsuit would narrowly challenge his suspension, and the evidence presented in today’s appeals hearing. But more broadly it could challenge the NFL’s management-friendly labor structure. For no business save sports leagues, which receive generous antitrust exemptions, would courts allow a single-track appeal process like this one. But it’s never gone before a judge. The NFLPA would love to see how it stands up to labor laws. The NFL would prefer to never find out.
This would be an extreme outcome. It seems much more likely that Brady’s suspension will be reduced to something he’s willing to accept, and everyone moves on without taking this out-of-house (especially since Brady has never been a particularly vocal union supporter). But the possibility remains that going after the league’s golden boy will be the NFL’s first step in weakening its own power.