Judges dial in on Tom Brady’s cell phone – Boston Herald

NEW YORK — Memo to Patriots fans: Your long national nightmare about deflated footballs has now come down to a destroyed cellphone.

Three federal appellate judges yesterday appeared to take umbrage with the fact that New England Patriots star quarterback Tom Brady got rid of his phone during the NFL’s investigation of his alleged involvement with a scheme to deflate footballs prior to the 2015 AFC Championship Game.

And in doing so, at least two of the judges strongly indicated they were ready to reinstate the four-game suspension that Brady was supposed to start last September before U.S. District Court Judge Richard Berman nullified it.

“Anyone within 100 yards of this would have realized that the cellphone issue raised the stakes in this thing,” said Judge Barrington Parker, who grilled Jeffrey Kessler, Brady’s union-appointed attorney.

“An adjudicator looking at these facts, it seems to me, might conclude that the cellphone had incriminating information on it and that, in the teeth of an investigation, it was deliberately destroyed,” Parker said. “So why couldn’t the commissioner suspend Mr. Brady for that conduct alone?”

Kessler has argued that NFL Commissioner Roger Goodell upheld Brady’s suspension in part because of the destroyed phone. He has time and again said that Goodell added the phone to the case because league investigators only found that Brady was “generally aware” of a scheme to deflate footballs.

But the appellate court, which hammered Kessler for nearly 20 minutes, wasn’t impressed with the argument.

Kessler insisted that Goodell doesn’t have “blanket authority” to make those decisions under the Collective Bargaining Agreement, or CBA. But Circuit Judge Denny Chin said evidence of ball-tampering was “compelling, if not overwhelming,” and there was evidence to support a finding that Brady “knew about it, consented to it, encouraged it.”

“How do we as appellate judges reviewing an arbitrator’s decision second-guess the four-game suspension?” Chin asked Kessler.

Chief Judge Robert A. Katzmann, who seemed sympathetic to Brady throughout the proceeding, chimed in.

“Your challenge is to show where in the CBA that if you tamper with game balls and then obstruct an investigation, you will only get a fine,” he said to Kessler.

Soon after, Parker added: “This went from air in a football to affecting an investigation. Brady’s explanation of this made no sense whatsoever.”

Brady’s lawyers wanted to focus on how they didn’t have equal access to the NFL’s investigatory materials and weren’t able to question Jeff Pash, co-author of the Wells Report. But the judges brushed that aside.

They all but ignored the fundamental unfairness of the proceeding, and forced Kessler to defend one of his weaker arguments — that Brady had no notice that he was being suspended in part for obstructing an investigation.

The NFL took some hits, too. Parker said the four-game suspension seemed “Draconian.” He said Goodell seemed like the “judge, jury and — executioner isn’t the right word — but enforcer” and that his arbitration hearing is “fundamentally different” than any he’s seen.

Yet Parker acknowledged later that arbitrators have wide discretion in their decision-making. “This is arbitration,” he said. “It’s casual. Sometimes it’s down and dirty.”

That’s what the NFL has been saying for more than a year. And sadly for Brady and the Patriots, the appellate court appears to be buying it.


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