What to make of judge’s criticisms of NFL’s case against Tom Brady

District Judge Richard Berman continues to implore attorneys for the NFL and NFLPA to settle their dispute over Tom Brady’s four-game suspension, the judge has perhaps unintentionally signaled to Brady that he might be better off waiting for a decision.

These criticisms are important because, barring a settlement, Judge Berman will make a decision on whether the NFL’s process and procedures in the Brady matter reflect a lawful application of Article 46 of the league’s collective bargaining agreement.

Most notably, Judge Berman sharply questioned why the NFL refused to let Brady’s legal team ask questions of NFL general counsel Jeffrey Pash during Brady’s appeal on June 23.

The significance of Judge Berman’s commentary about Pash’s availability is that it cuts to the lawfulness of the NFL’s process the very issue that lies at the heart of the legal dispute over Brady’s suspension.

Last week Judge Berman openly wondered why the NFL would conclude that Brady played some role in deflating footballs when there is no direct evidence of Brady’s involvement.

If Judge Berman concludes that the NFL’s process in investigating and punishing Brady was fundamentally unfair, he would be inclined to rule for Brady.

While Judge Berman could still find that Goodell possessed other grounds to punish Brady, his remarks underscore the vulnerability of the NFL to a key process argument: the rationales and policies used to punish Brady have arguably changed.

It’s possible, however, that Judge Berman’s critical remarks about the NFL’s process could cause the league to back off its apparent insistence that Brady admit to participating in a ball deflation scheme.

NFLPA attorney Jeffrey Kessler has asked Judge Berman to take possibility of a second NFL hearing off the table, but it’s not clear that Judge Berman would go along with such a stipulation.

Regardless of whether there is a second NFL hearing over Brady’s four-game suspension, the NFL would likely appeal Judge Berman vacating Brady’s suspension to the U.S.