New England Patriots’ quarterback Tom Brady and NFL Commissioner Roger Goodell would surely prefer to focus on football’s preseason than to line up against each other in court.
But the official calling the shots in their dispute is U.S. District Judge Richard Berman and he is forcing them to show up Wednesday in New York -- perhaps in a bid to shame them into a settlement.
Not one for bluster, Berman is a soft-spoken judge with a pleasant demeanor who speaks plainly from the bench, but has no qualms about pressuring high-profile litigants until matters are resolved. Just ask “Jay Z” and Phil Purcell, formerly of Morgan Stanley, who are among those he’s summoned into his court over the last 17 years as he twists arms to resolve lawsuits.
Berman seems intent on getting a settlement of a dispute over Brady’s four-game suspension for his role in using underinflated game balls -- in what’s come to be known as Deflategate. To be decided is whether Brady can avoid the punishment and suit up for the season opener a month from now.
Berman began urging a settlement almost immediately after the case was filed. He directed the league and the NFL Players Association on July 30 to “tone down their rhetoric” and “begin to pursue a mutually acceptable resolution.” And he ordered them to show up in court -- in person.
He reiterated his wish in an order Tuesday, calling on both sides to “engage in further good faith settlement efforts today.” The judge said he’d meet briefly with the parties in private Wednesday, ahead of the hearing.
“You really want the people there who are the decision-makers,” said retired federal judge Philip Pro, who now works as an arbitrator and mediator. “You don’t want people remotely, on the phone.”
On their way to Berman’s court in downtown Manhattan, Brady and Goodell will probably run a gantlet of reporters, photographers, satellite trucks and television cameras, which may well be what the judge wants.
“Whether you’re a movie star or a Fortune 100 CEO, it’s somewhat embarrassing to be summoned to court,” said Anthony Sabino, who teaches at the law school at New York’s St. John’s University.
Brady was suspended after an investigation found he probably knew team staffers deflated game balls below limits required by the rules, before the Patriots 45-7 thrashing of the Indianapolis Colts in last season’s conference championship game. Brady, who has denied any wrongdoing, has said he prefers to throw softer footballs. Goodell rejected his appeal.
The league sued the union to confirm Goodell’s decision, the union countersued to reverse it and both sides asked Berman to resolve the fight before the Patriots’ Sept. 10 season opener.
Jeffrey Kessler, a lawyer for Brady and the union, and Joanna Hunter, an NFL spokeswoman, declined to comment on the case.
The controversy over the deflated footballs overshadowed the two-week lead-up to the Super Bowl, which the Patriots won 28-24 over Seattle. Yet Brady’s role -- or lack thereof -- in the scandal is no longer the main focus. The question now is whether the NFL appropriately handed down Brady’s penalty and whether the commissioner acted within his powers.
The NFLPA successfully challenged the disciplining of players such as Ray Rice, Adrian Peterson and Greg Hardy. But those were all for violations of the NFL’s personal-conduct policy. Gabe Feldman, the director of the sports law program at Tulane University, said it’s more of an uphill battle fighting an internal arbitration decision.
The NFL said it abided by the collective bargaining agreement, which sets out the disciplinary process and lets Goodell, or someone designated by him, hear appeals. Goodell said there were no directly comparable cases to Brady’s in the past.
The union argued Brady wasn’t advised of the disciplinary standards or potential penalties.
In rejecting Brady’s appeal, Goodell said Brady had his personal mobile phone destroyed just before meeting with investigators, an act the commissioner said was an effort to conceal potentially relevant evidence and undermine the probe.
Brady said in a Facebook posting he replaced a broken phone after being assured by his lawyers it wouldn’t be needed in any investigation.
Such is the muddle that will confront Berman, a 1998 appointee of President Bill Clinton. A former Family Court judge in New York, Berman, who declined to comment on how he would handle the NFL dispute, told the New York Law Journal last year that he pursues “settlement options early and often.”
A self-described “news/TV junkie,” the former general counsel at Warner Cable said he would’ve stayed in the media business if he hadn’t become a judge. In the federal courthouse in New York, he serves as liaison between journalists and the judiciary.
Berman, 71, is no stranger to celebrity cases. Last year, he sentenced conservative political commentator Dinesh D’Souza to eight months in a community confinement center for campaign-finance violations. He sentenced a man who swindled wealthy wine collectors including billionaire William Koch with fake vintages to 10 years in prison, the most severe punishment ever meted out for such a crime.
He’s aggressive in his handling of civil suits. On the eve of having to appear in court on Berman’s demand, Shawn “Jay-Z” Carter and Red Sox slugger David Ortiz settled a court fight over rights to a nightclub name.
“He was very helpful in bringing the parties together,” said Philip Touitou, Ortiz’s lawyer.
Berman twice brought Purcell to his courtroom as part of an Equal Employment Opportunity Commission lawsuit, where he sternly told the CEO and EEOC chief he was “stunned” the case hadn’t settled. Berman spent hours conferring with each side behind closed doors before an accord was reached.
One technique Berman has used to spur settlement is setting tight deadlines. That may be especially needed in this case, with the start of the season just a month away.
The case is National Football League Management Council v. National Football League Players Association. 15-cv-05916. U.S. District Court Southern District of New York (Manhattan).