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New England Patriots quarterback Tom Brady could again be facing a four-game suspension for the scandal known as Deflategate after federal appeals court judges spent time Thursday shredding some of his union's favorite arguments for dismissal.
The 2nd U.S. Circuit Court of Appeals in Manhattan gave a players' union lawyer a tough time, with Circuit Judge Denny Chin even saying 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 attorney Jeffrey Kessler of the NFL Players Association.
The appeals court did not immediately rule, but it seemed to lean heavily at times against the union's arguments, raising the prospect that the suspension Brady was supposed to start last September before a judge nullified it may begin next season instead.
The appeals panel seemed receptive to the NFL's argument that it was fair for Commissioner Roger Goodell to severely penalize one of the game's greatest quarterbacks after concluding he tarnished the game by impeding the league's investigation into deflated footballs, including destroying a cellphone containing nearly 10,000 messages. The league had concluded that deflated balls were used when the Patriots routed the Indianapolis Colts at the January 2015 AFC championship game before they went on to win the Super Bowl.
Judge Barrington D. Parker said the cellphone-destruction issue raised the stakes "from air in a football to compromising the integrity of a proceeding that the commissioner had convened."
"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 said the league's investigator never asked for the phone.
"With all due respect, Mr. Brady's explanation of that made no sense whatsoever," Parker said.
Chief Judge Robert A. Katzmann noted that the fact that commissioners can be confronted with a novel situation might be why the language of the players union's contract agreement with the league "gives the commissioner broad authority to deal with conduct detrimental" to the game.
The judges did not treat the NFL gingerly either, with Parker questioning whether Goodell took his authority too far by designating himself the arbitrator and making findings that went beyond a report prepared by an investigator the league hired.
Parker told NFL attorney Paul Clement that Goodell in effect is "the judge, the juror and, execution is not the right word, but the enforcer," and that his power made his role different fundamentally from arbitration cases the court typically handles.
Clement said both sides had agreed in contract negotiations that Goodell would preside over "conduct detrimental" proceedings.
At another point, Parker said Brady's lengthy suspension seemed at "first blush a draconian penalty" for deflated footballs.
"What's the advantage you get from an underinflated football?" he asked.
The judges also questioned why deflating footballs would warrant a severe suspension.
But they seemed to answer that question themselves when Kessler stood before them as they noted repeatedly that it may well be within Goodell's authority to punish a player if he concludes that the player interfered with an investigation and thus engaged in conduct detrimental to the game.
After Goodell rejected Brady's appeal of the four-game suspension, the league went to federal court to get a judge's approval of its handling of the case. But Judge Richard Berman ruled against the NFL a week before the season began, eliminating Brady's suspension.
The NFL appealed.
Clement urged the court to rule quickly for the good of the game.
"It would be an awful shame if this issue has to be hanging over the league for another whole season," he said. "End this right now."
Neither Goodell nor Brady was in court Thursday. A decision could take weeks or months.
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