With the official efforts to settle the Tom Brady suspension litigation over (the unofficial efforts, in theory, may continue until a decision is reached and beyond), the question now becomes how Judge Richard M. Berman will rule. That question has several potential answers.
It’s important to remember that no one knows what will happen. People will make predictions, guesses, whatever. Anyone who claims to know precisely what the outcome will be is lying or uninformed.
The goal for the remainder of this post is to make you informed about the options Judge Berman has.
First, he can give the NFL a slam-dunk victory. That would entail upholding the suspension in its entirety, refusing to stay the suspension pending appeal, and forcing Brady and the NFL Players Association to make an immediate effort to persuade the U.S. Court of Appeals for the Second Circuit to grant an injunction allowing Brady to play pending the appeal.
Second, Judge Berman can give Brady a slam-dunk victory. That would entail vacating the suspension and finding that the league lacks the power under any circumstances to suspend Brady either for having knowledge of a scheme to deflate footballs or for obstructing an NFL investigation. He could then remand the case for further proceedings limited to issuing fines to Brady for the infractions. The NFL could seek an emergency appeal to the Second Circuit, but it would be a steep uphill climb to get the suspension implemented for Week One.
Third, Judge Berman can rule for the NFL but enter an injunction allowing Brady to play pending appeal. This would be a potential mixed-bag outcome that could prompt the two sides to settle, since Brady likely would be available for all of 2015 while the appeals process unfolds in the Second Circuit.
Fourth, Judge Berman can send the case back to the arbitration process, vacating the suspension and requiring the NFL to give Brady a new appeal hearing that remedies procedural flaws by: (1) appointing a new hearing officer due to Commissioner Roger Goodell’s inherent bias and/or involvement in the case; (2) mandating that certain witnesses must be called to testify in order to make the process fair, including NFL general counsel Jeff Pash; and/or (3) requiring the NFL to make investgative information gathered by Ted Wells that was available to the league for the first appeal hearing also available to the NFLPA. Sending the case back for a second appeal hearing also could nudge the two sides toward a settlement.
Fifth, Judge Berman could try to impose a reduced suspension, splitting the penalty into two games for “general awareness” and two for failure to cooperate and enforcing one and scrapping the other. This would be unlikely since the NFL didn’t tie specific games to specific penalties, making it more of an all-or-nothing proposition. Still, it’s possible that Judge Berman will at least try to do it.
There could be other possibilities, but those are the primary potential choices. The selection could go from potential to actual as soon as Tuesday, nine days before the Patriots host the Steelers to start the 2015 season.