Judge Berman Has Spoken…

Today, Judge Berman overturned the NFL-imposed 4-game suspension for Tom Brady. I have not gone online to read any opinion pieces about that decision yet. The reason is that I am confident that the people who had opinions on the matter before Judge Berman’s decision will not have changed their minds before their fingers hit their keyboards.

For the record:

For me, there has never been sufficient evidence that the balls in question were purposely deflated – let alone evidence that Tom Brady was involved in that activity even it actually happened. Judge Berman evidently thought that was important too because he reportedly kept asking the NFL attorneys what evidence they could present to show that Tom Brady had anything to do with tampering with game balls on January 18, 2015. And they could present no such evidence.

For me, there were procedural inadequacies from start to finish in the case that should have rendered it moot. Most important in those inadequacies was the fact that The Wells Report – paid for by the NFL with the intent of showing wrongdoing in the matter and costing somewhere between $3M and $5M – could only come to the conclusion that Tom Brady might have been generally aware of something that it had to use pseudo-science to determine had happened. Ted Wells is an attorney and has to consider his reputation and the reputation of his firm even in light of the $3-5M he was getting in billable hours for this report. He could not/would not put his name on the line to say “this guy did that thing because here is the evidence.”

With regard to the refusal to turn over the phone to the investigators, let me point out that if you are charged with something, you do not have to turn your phone over to the police just because they ask for it. They can get a warrant to confiscate if from you, but you are not required to just hand it over because they said “pretty please”. Somehow, the NFL seemed to think that they had a right to ask for Brady’s phone and that conferred some obligation on his part to give it to them. Obviously, Judge Berman disagreed.

I know that there will be some folks out there calling for Roger Goodell’s head on a stick. While I believe he was way out of line here, I am not going to be one of those people. Back in September of last year – more than 4 months before anyone ever heard of deflated footballs in the AFC Championship Game – I wrote this piece on this website. I believe then and continue to believe that the NFL and the NFLPA set up an untenable situation in their last CBA with regard to the way discipline would be meted out. Because all of this is in the CBA, that means that both parties are to blame; there has never been a CBA without at least two parties as signatories.

My argument is that a sports commissioner needs to do two things to be successful:

1. Grow the league revenues/profits
2. Maintain labor peace to keep the product on the field/growing.

Roger Goodell has been hugely successful at those two things; the NFL will bring in about $11B in revenue this year and projects to more than $12B by 2017. His “problem” is that he is also “The Disciplinarian” and that “other duty” puts him in a position to do things that make the league look stupid (does not grow revenue) and makes the union go berserk (does not maintain labor peace).

In my rant 4 months ago, I said the solution here would be for both parties to the CBA to admit they have an internal flaw here and for both sides to amend the CBA to create a Disciplinarian who is not part of the league or the union. Both parties should fund the Disciplinarian and whatever staff is needed; both parties should define what degree of cooperation all parties to the matter would owe to the Disciplinarian. If mature adults could put their egos in another room for 4 hours, this kind of agreement should be forthcoming. The problem here is that will not happen – and that means that there will be some “scandal” will come up in the future to which someone will attach the suffix “-gate” and it will turn into a glorious mess.

Why do I predict that? Because the NFL is going to appeal Judge Berman’s decision and that is nothing more than an ego-driven reflex. And because the NFLPA is already gloating about their winning streak in courts to overturn/reduce the discipline decisions of the Commissioner and that is nothing more than ego-driven posturing.

So, Tom Brady will be on the field for Game 1 next Thursday night – as he should be. Just as certainly, there will be some other brouhaha in the next year or so that will spin out of control – and likely it will be founded in the same CBA-driven morass as was Deflategate. However for the moment, we can take solace in the words of former President Gerald R. Ford spoken just after he was sworn in as President in the wake of Richard Nixon’s resignation:

“My fellow Americans, our long national nightmare is over.”

But don’t get me wrong, I love sports………