On Tuesday, when Judge Richard M. Berman directed the NFL and NFL Players Association to continue their settlement discussions prior to Wednesday’s hearing, the two sides had indeed been talking, but they hadn’t been getting anywhere.
Since then, they’ve talked some more -- and they still haven’t gotten anywhere.
Albert Breer of NFL Media reports that Brady’s refusal to admit guilt remains a stumbling block. ESPN’s Chris Mortensen was more specific, reporting that Brady would have to “accept” the Ted Wells report.
Here’s the problem for the NFL. In virtually every civil case resolved via settlement, the party accused of wrongdoing admits nothing. It’s standard practice; in return for the payment of money, the party paying the money expressly admits to no wrongdoing. As a practical matter, the payment of money says everything that needs to be said.
So the NFL needs a persuasive response when Judge Berman asks why this case should be handled differently than virtually every other civil lawsuit that settles.
Ultimately, the NFL may be more willing to hold firm and lose than to accept a settlement under circumstances that suggest they wavered in any way on their position regarding Brady. If Judge Berman rules against the NFL, the league can publicly vow to appeal, privately blame the outcome on an activist, liberal judge, and both publicly and privately claim that it wears the ruling as a badge of honor.
Of course, that same mindset potentially applies to Tom Brady. If the judge pushes him to accept responsibility or to agree to a one-game or two-game suspension, Brady may be more inclined to hold firm and to accept a defeat in court, since that would allow him to continue to insist -- loudly -- that he did nothing wrong.
While that would still be the case if he agrees to, for example, a four-game fine, it’s much easier to explain that he opted to give up some money to ensure that he’d be available for his teammates, and for the fans.
That still feels like the right result: no suspension, four-game fine, no admission of guilt. It very well may be that the NFL prefers involuntarily taking no suspension, no fine, and no admission of guilty.