Going in to Thursday’s federal appeals court hearing, the deck seemed to be stacked in favor of Patriots quarterback Tom Brady, with two of the three judges appointed by Democratic presidents and thus philosophically inclined to align with labor interests over management rights. During the hearing, it didn’t go quite as smoothly for Brady’s camp.
Amid multiple accounts that the three judges went harder after Brady’s lawyer, Jeff Kessler, than they against the league’s lawyers, Tom Curran of CSN New England says bluntly that Kessler “took it on the chin.”
At one point, Judge Denny Chin said that the evidence of tampering with footballs was “compelling, if not overwhelming,” and that there was evidence to support the belief that Brady “knew about it, consented to it, encouraged it.” Chin, frankly, is right; the texts exchanged by John Jastremski and Jim McNally suggest that something improper was happening generally, and Brady’s ill-advised evasiveness when testifying before Commissioner Roger Goodell could be construed as a superficial effort to conceal the possibility that Brady wanted the footballs to be below 12.5 PSI by declining to admit the obvious reality that Brady wanted the footballs to be inflated at the low end of the permissible spectrum.
The real question regarding the league’s investigation is whether enough evidence was developed to show that tampering actually happened on January 18, 2015. The league believes there is, and the PSI readings coupled with a rudimentary understanding of the laws of science suggest there was not.
Still, that nuance apparently was lost in the shuffle as Kessler found himself unexpectedly backed into a corner by a panel that should have been more inclined to rope-a-dope the league’s counsel. Per Ben Volin of the Boston Globe, Kessler at one point became “exasperated” over the fact that the judges were caught up in their interpretation of the facts in a proceeding that isn’t supposed to entail adjudication of what did and didn’t occur.
But even though cases resolved at the federal appeals level are supposed to hinge on how the law applies to the facts and not what the facts really are, judges need to believe that they are doing justice. If a judge believes that one side or the other behaved inappropriately in connection with the underlying events, that belief will shape the judge’s interpretation of the law.
For most cases being resolved on appeal, there’s no calculation or formula. The law is malleable, and good judges can find a way through the weeds to support whatever the judge wants to do. What the judge wants to do is influenced by what the judge believes should be done. Which makes it critical for every lawyer in every case to quickly and persuasively sell the folks in the black robes that their client wears a white hat.