Second Circuit slams door on Judge Berman scrapping Brady suspension again


When Judge Richard Berman issued his ruling scuttling the Tom Brady suspension, Judge Berman refrained from addressing multiple other arguments supporting the potential reversal of the discipline imposed on Brady as a result of the #Deflategate situation. The move was viewed as an opportunity for Judge Berman to overturn the suspension a second time, if the U.S. Court of Appeals for the Second Circuit disagreed with Judge Berman on the initial grounds for wiping out the suspension.

In reversing Judge Berman, however, the Second Circuit opted to rule on all open issues, blocking any further effort by Judge Berman to defeat the suspension.

“Although it is our usual practice to allow the the district court to address arguments in the first instance, we choose to address the [NFLPA’s] arguments here because they were fully briefed below and on appeal and because they are meritless,” the Second Circuit wrote at page 30 of the ruling.

The two open issues related to the argument that Commissioner Roger Goodell improperly delegated his authority to NFL executive V.P. of football operations Troy Vincent to make the first decision regarding the imposition of discipline and the claim that Goodell was “evidently partial” in his role as arbitrator.

“Here, the parties contracted in the CBA to specifically allow the Commissioner to sit as the arbitrator,” the Second Circuit wrote at page 33. “They did so knowing full well that the Commissioner had the sole power of determining what constitutes ‘conduct detrimental,’ and thus knowing that the Commissioner would have a stake both in the underlying discipline and in every arbitration [falling within his jurisdiction]. Had the parties wished to restrict the Commissioner’s authority, they could have fashioned a different agreement.”

That’s a powerful statement, which underscores the breadth of the Commissioner’s authority and, in turn, gives the NFL the ability to push for a major concession at the bargaining table if/when the NFL Players Association decides to continue to push for third-party arbitration in all cases.

114 responses to “Second Circuit slams door on Judge Berman scrapping Brady suspension again

  1. Just beautiful baby! Just beautiful. In the end, justice always prevails and cheaters find their punishment. Cheat Nation’s tears are delicious! Thank you Roger!

  2. this is definitely why the USSC will hear this case.

    the commissioner has the authority based on a CBA that the “union” has no ability to equally negotiate.

    there is no other shop the players can move to in the event there is no equal negotiation.

    you have no idea how much i hope this goes to the USSC.

    Florio, what do you think?

  3. Patriots fans were insufferable last year, nice to see them get their just desserts.

    But hey look on the bright side, Brady can use the extra time off to recover from that beating he took in Denver last January.

  4. this ruling basically states that big business has more power then facts, evidence and integrity

    it was obvious from the get go when one of the three judges referenced “overwhelming evidence” proving he hadn’t even looked at the case

    then again everyone posting today has proven they didn’t look at the case or evidence and all court rulings should be based on the peoples wishes irrelevant of the facts

    yes haters your entire case breaks down to one text with the word “deflater” keep on hating i look forward to the day when i get to support goodell against your team when he has no evidence and shows so little regard for facts that he doest even do any research after the fact to see if natural physics can explain the facts,

    your time will come and pats nation will cheer, your support of goodell has only empowered him and strengthened his dictatorship

  5. This ruling guarantees that there will be a strike at the next collective bargaining new contract proceedings. The NFLPA will go for the jugular against the owners next time. Obviously these justices were bought off. Brady was screwed.

  6. The Patriots are going to draft WR’s and Tom Brady is going to break single season records in only 12 games. He’s going to be insanely pissed and motivated. And laughing about that re-worked contract.

  7. Hard to argue that this wasn’t a brilliant strategy by the NFL. You can’t really think this is about Brady primarily – it’s about the NFL maintaining leverage over the NFLPA. It’s about the process, and the NFL appears to be playing chess.

  8. “…the Commissioner would have a stake both in the underlying discipline and in every arbitration [falling within his jurisdiction]”

    In other words, you don’t let the cops be the judges.

    The NFLPA was stupid to agree to such an arrangement under the last collective bargaining agreement.

  9. If it’s war they want, it’s war they will get. Time to take Roger the tin plated dictator with delusions of godhood down any way we can. When you act as if your above the law, what you can expect against you is lawlessness. Time to DOX the moron and make him regret his illegal immoral actions.

  10. Mike, good point about the opinion foreclosing Berman from doing anything to allow Brady to play, while he tries a legal Hail Mary and get in banc review by all judges of the Second Circuit or the Supreme Court – the only thing that offers Brady’s side hope is that 2-1 decision of the sort that does get in banc review, but it’s long odds- I’ve had many cases in that and other U.S. Circuit Courts cases, and only had it happen once- from a 2-1 decision.

    Basically, the the majority says that the arbitrator acted within the scope of the collective bargaining agreement; the dissent agrees but says that Goddell went beyond the findings of the arbitrator and the Wells report in finding that Brady actively participated in a scheme as opposed to the ‘generally aware’ finding in the Wells’ report; and that length of the suspension was out of line.

    Odds of in banc, or Supreme Court review are maybe 20% ; and even if granted, the full Second Circuit or the Supreme Court would have to stay the suspension – in short, the legal equivalent of a Hail Mary.

  11. .
    ” The NFLPA and Brady can petition for a re-hearing in front of the same panel then the entire 2nd Circuit Court or take their appeal to the U.S. Supreme Court. They would have to request a stay of Brady’s suspension during the appeal. ”

    This is just the beginning

  12. “They did so knowing full well that the Commissioner had the sole power of determining what constitutes ‘conduct detrimental,’ and thus knowing that the Commissioner would have a stake both in the underlying discipline and in every arbitration [falling within his jurisdiction]. Had the parties wished to restrict the Commissioner’s authority, they could have fashioned a different agreement.”

    Translation: You made your bed. Now sleep in it!

  13. The NFL broke U.S. labor laws.

    The NFL did not follow its own CBA.

    The NFL was caught lying to the court multiple times.

    How in the world did those 3 nincompoops in the robes manage to screw this up?

    Next up, the U.S. Court of Appeals, 2nd Circuit rules that Newton was a fraud. “Gravity, in fact, does not exist.”

  14. This isn’t even about whether he cheated or not. This ruling was only about whether the commish has the authority.

    The Dolphins, Saints, and Chiefs have been through the same BS from this league. Bully gate? Bounty gate? Tamper gate?

    Krafts biggest mistake was supporting his buddy Goodell when those bogus investigations happened.

    If it makes all the loser franchises feel better to call us cheaters then knock yourself out but you know way down deep where it hurts that the patriots were just better. Brady looked pretty good last year throwing a fully inflated ball, didn’t he? My kids know why the air pressure in the Colts and Patriots balls were low. Because it was January!!!

    Brady’s team will go after the PSI info and Brady plays week 1…and even if he doesn’t Pats still make the playoffs. Enjoy the victory for now.

  15. The problem is Goodell’s defeats when citing Article 46 all indicate he in objective fact does NOT have the authority this appeals court claims he does. He didn’t make it stick with Brady or his past appeals, and the “non-cooperation” argument was never a legitimate part of the CBA to begin with – it was slapped on in December 2014 by Goodell after the fact to cover his own butt.

    This appeals court didn’t do its homework here.

  16. Congrats Brady haters, you’ve managed to give the NFL more power with your absurd outrage over something that can’t even be proven. They’ll come for your team next. Ask any Chiefs fan.

  17. Judge Berman obviously bets on the Pats, should have his license revoked and be put in the slammer

  18. So now the owners get their 18 game schedule because they have the biggest bargaining chip for either side:

    Commissioner’s dictatorial power on punishment deemed “conduct detrimental”.

  19. Given what happened last season – the Ravens, Colts, and Jets all failing in spectacular fashion via karmic backlash for their role in this whole shebang, I’d be terrified if I were on any of those three teams.

  20. I guess Kraft and Brady couldn’t bribe the entire court of appeals, so Tommy Boy’s gonna finally get the vacation he so richly deserves. Enjoy the draft Thursday night New England.. #Justice

  21. Brady’s billion-dollar defamation lawsuit against the league once he retires will be glorious.

    I can’t wait to see Goodell try and hide behind legalese and buried contract clauses when all of his communication with league execs, Wells, Pash, and the owners are on public display.

  22. So if the owners of 17 teams decide they don’t like a player they can order Goodell to suspend that player for the slightest infraction and claim it was under the “conduct detrimental” clause of the CBA….awesome.

  23. This might suck for pats fans like me, but the commish does have authority to do basically whatever he wants. The pats should be fine

  24. Brady used to make $9M / year.

    He signed a new deal last year that pays him $1M / year, with a $29M signing bonus (for 2 years, averages out to $14.5M/year).

    But the amount of money he loses for the suspension (4 game checks, 1/4 of his salary) goes from $2.25M to $250K.

    Its like he knew…..

  25. These New York judges went by the Wells Report…The Wells report…they reiterated the “11 of 12” and the Colts balls not under…these people are Federal Judges…What completely inept and corrupt morons…THEY BELIEVED THE WELLS REPORT!!!

  26. This was always going to be the outcome, the CBA is very clear and rock solid, labor law in this area tends to be quite cut and dried.. Says nothing about guilt or innocence of Brady. However, he clearly is guilty and a cheater…and for the 432nd time, the ideal gas law argument has no scientific merit in this case….far too many variables in the investigation of those particular balls at that particular time for the gas law to even be brought up. Anyone who is not biased and has a reasonably fair amount of science education knows this…

  27. And I think Brady will attempt another appeal, even up to the USSC, to support the players association to use the courts to reduce the commissioner’s powers. The owners knew something like this would happen when they agreed to the last CBA, all of the power is in the owner’s proxy, the office of the commissioner.

  28. I definitely think Brady and the patriots are liars. However so is the NFL front office and their stooge goodell. Make this all go away as it makes both sides look foolish and childish.

    It will be easy enough catching the patriots again cheating the system.

  29. The 2nd circuit is in NY. There are is one team in that “state” region actually that plays in their decision and one team who beat them twice in the super bowl. I would bet my life that 99% of judges inNy are fans of those two teams. We have heard how many people that work for the NFL in NY are Jets fans. This is pathetic. They are a better team. Everyone does whatever you want to accuse the patriots of doing. The Bronco’s won two super bowls playing with the salary cap. The Colts pump in fake crowd noise. You guys so fat up there you cant even get up and yell? MThe NFL blocked the draft trade that would have sent Elway to the Raiders. I have always hated the Jets and Coltsfor some reason and my hatred will never go away.

  30. What this means in the big picture – beyond Brady and the Patriots – is that the CBA, legally now with precedent, allows Roger to do anything he wants with no justification other than that he thinks it’s a good idea.

    This is very bad for the players and the union, whether you are pro-Brady/Pats or anti.

  31. Brady obviously did it.

    Why was he referred to as the “deflator”?

    Who destroys their cellphone immediately before it is to be examined?

    Lucky he only got 4 games.

  32. All the Patriots/Brady haters will be celebrating this decision. Never mind that the 49’ers and Broncos both were caught cheating with the salary cap when they were winning Super Bowls in the 90’s, the haters will be whining that the Patriots are cheaters. And the Falcons were fined and lost a draft choice for piping in crowd noise, something the Vikings have done forever.
    And how about this? This Commissioner got caught flat out lying during the Ray Rice incident. And lest we forget about the Colts owner and his troubles?
    This whole delflate-gate is one of the most stupid things I’ve ever seen in the NFL. They could have played that game with hydrogen filled balloons that day and the Colts still wouldn’t have beaten the Patriots.
    If I were Tom Brady, I’d head for a beach somewhere and I’d send Goodell pictures of my Super Bowl Trophies and bikini clad beauties every day.
    Goodell is an idiot and long after no one remembers him, NFL fans will be remembering Tom Brady as one of the greatest players to have ever played in the NFL.
    I am not a Patriots fan, either. I am a Packers fan.
    Incidentally, when you have time, look up all the suspensions which have taken place in NFL history. You’ll be surprised as I was what offenses have occurred in the past (such as trying to fix an NFL Championship game, for instance).
    Goodell’s NFL is turning me off to a sport I have loved for over 50 years. He is a complete moron and it shows how stupid the owners are, because they’re paying him 40 million bucks a year to ruin their game.

  33. If Brady was smart he would have served the four game suspension last season and it would have been water under the bridge by now…

  34. No tears here trolls…You’re projecting. Only the trolls in the Loser’s Circle would use this as an excuse to cry and justify their team’s under performance.

    I was told by all the trolls that Berman’s decision didn’t mean Brady was innocent. Sorry, same holds true here. This doesn’t mean he/Patriots are guilty. Just means Goodell has the power to lie and make stuff up to fit his agenda. Yeah! Big Celebration for the trolls! They won the Public Opinion Bowl! Yay! Neat!

    Meanwhile, Patriots probably will be 2-2 after first 4, win the division again and play in the AFC Championship game…again…

  35. Motivation: 2016.

    2015’s version ended a 2 point conversion short of the Super Bowl.

    Even if Brady doesn’t get a stay of his suspension – which he probably will, because it’s irreparable harm – Pats win the division going away, probably with another bye. They’re stacked.

    NFLPA is a joke, but they actually thought Goodell would play fair. He did not. This isn’t over by a long shot. He is supposed to protect fairness on the field, and is doing the exact opposite by letting 31 jealous owners dictate that he tear down the greatest organization of all time. Suspend the greatest quarterback of all time, take first round picks without evidence.

    Meanwhile they can’t help themselves giving $50m to a 29 year old CB.

    THAT is why the Patriots will win again.

    And again.

    And again. The rest of the NFL is still screwed but they are in denial.

    Haters: enjoy your (most recent) spring victory, Patriots will still be playing 2016’s season well into 2017.

  36. Sell your house in Maine Goodell…Good luck ever stepping foot in The 5.5 states that make up New England

  37. “Although it is our usual practice to allow the the district court to address arguments in the first instance, we choose to address the [NFLPA’s] arguments here because they were fully briefed below and on appeal and because they are meritless,” the Second Circuit wrote at page 30 of the ruling.


    They realize judge Berman acted like an ass and this is their way of scolding him. Anyone who followed the original case realized the Berman was interested in everything but the issue in front of him “Does the commissioner have the authority to do what he did?”. The answer is an emphatic YES. The theater the judge engaged in that involved everything but the question in front of him was a waste of taxpayer money.

  38. This is could be the worst CBA in the history of CBAs. What union would allow one of its members to be railroaded based on highly circumstantial evidence with no recourse in which to attain a fair and partial proceeding!!!

    There is no evidence the Patriots , staff, or Tom Brady did anything to the footballs in the AFC CG in 2014. The Wells report was a pile of pig dung using almost conspiracy based logic to convict Tom Brady…

    This whole thing stinks… to high heaven. It is, IMO, the greatest miscarriage of justice in the entire history of sport in America!!! Mr Goodell … that will be your legacy.

  39. I just read it.

    The court said the arbiter is entitled to make mistakes in the facts…and the law. Shocking.

    That cannot be allowed to stand. Appeal it sir.

  40. As a Jags fan…this concerns me in that Goodell can give judgement any which way. If he is close to an owner, he can be lienent. Though Kraft was supposedly close, Goodell could listen to other owners and be swayed. The league office is full of agendas that can influence his judgment. This falls on the nflpa. They enabled him, thus they must live by his arbitrary judgements. NFL is like every big business…dirty and greedy. God bless America.

  41. Judge Berman was pictured rubbing elbows with Mr Kraft in the Hamptons, so how impartial was he in his ruling? He should have recused himself imho. I say that as a Pats fan.

  42. Pats can’t stop cheating. Brady and the organization knew he’d be suspended. Awarding a guy a 28mil bonus on a 2 year contract with a 2016 base of 1mil is bs. If this action wasn’t an admission of guilt, I don’t know what was. Destroying a cell phone?

  43. …and for the 432nd time, the ideal gas law argument has no scientific merit in this case….far too many variables in the investigation of those particular balls at that particular time for the gas law to even be brought up.

    One variable that never made it into the case (because it was never measured) — THE PSI LEVELS OF THE BALLS BEFORE THE GAME

    You’re saying we can’t count on the IGL because there are too many unknowns to consider, yet we CAN count on the guesswork and innunendo of the Wells investigation even with those same unknowns? Seriously?

  44. When it’s all said and done, both sides had arguments the other side couldn’t beat. The accusations of cheating were baseless and really amateurishly handled – any rational person can immediately see they’re ludicrous (and I say this as a Cowboys fan). So the league wasn’t going to win on that issue.

    But the league had the right to determine the punishment, so Brady & NFLPA weren’t going to win that battle, either.

    Brady’s appeal set the record straight on the lack of evidence for most people, and the league won on the topic of its own power.

  45. elevandoo says:
    Apr 25, 2016 12:48 PM

    If this action wasn’t an admission of guilt, I don’t know what was. Destroying a cell phone?


    Your employer asks for your personal cell phone, and you can pretty much guarantee that anything and everything of on it will be leaked to the media and the public, free of any context.

    What do you do?

  46. Reading the transcript of 2 of the judges in the appeal, it became obvious very quickly that they knew absolutely nothing about the case apart from what the league had said about it and Brady.
    The fact that so much of what the nfl has said about deflategate is false, we know absolutely is false, and that the nfl refused to ever correct, was not something the judges knew about or cared to learn about.
    2 of 3 judges thought Brady was guilty [they said as much] and they made sure the nfl got their win. King Roger is never to be challenged again.

  47. alltee says:
    Apr 25, 2016 12:18 PM
    this ruling basically states that big business has more power then facts, evidence and integrity


    This comment basically states that alltee has no idea what was being argued here.

    The facts of whether or not Tom Brady was involved in deflating footballs was not being argued. What was being argued was the procedure with which the NFL used to suspend him.

  48. I love the comments by people who know nothing about contract and labor law.

    The ONLY thing Berman was supposed to consider was whether or not, within the bounds of the CBA, the NFL had the right to impose the suspension. His ruling was WAY out of bounds and the circuit court confirmed that by over turning the ruling and slamming the door hard on Berman’s grubby little overreaching fingers.

    This isn’t going any higher up the chain. It’s a done deal the Supreme Court won’t even see a brief. Everybody with half a brain knew Berman’s ruling had no legal basis to stand.

  49. Oh well, TB has to sit 4 games. What will all of you “haters” say when he comes back against the Browns and the Pats go 12-4 on the season?

    I’ll wait and enjoy your misery continuing.

  50. Brady isn’t the victim here. Literally there was an equipment dude nicknamed the deflator. Godell didn’t want brady’s phone but wanted brady to own up to his actions. It may have hurt at first, but bradys legacy wouldn’t have been tarnished because all qbs through history tampered with gameballs. The brady years will always be remembered as among the best in nfl history, and the players on these teams literally walk on water in Boston, but for most fans, there will always be questions about their integrity.

  51. ” The 5.5 states that make up New England”

    CT, MA, NH, VT, ME, R…

    Is that a slam on Rhode Island? I mean I know they are basically a suburb of the Boston metro area but they are a state. (or is it a shot at Maine, over them seceding from Massachusettes)?

  52. Yes, they have kept the issue from being returned to Berman but not before Berman performed a service to the truth, something missing from the NFL’s investigation. Up until Berman’s court, the NFL lied and manipulated evidence with impunity. Berman showed the world that Emperor Goodell had no clothes. Alas, the powers that be have now ruled in favor of the emperor but for most of us he looks more like a jester and a sycophant of the owners.

  53. Q: What do you call a lawyer with an IQ of 65?

    A: “Your Honor”

    This decision is a travesty. Bert Bell, Pete Rozelle and Paul Tagliabue all managed to the exact same job as Roger Goodell with far less drama and far more respect from the players, the owners and the fans.

    If I’m the NFLPA, I’m calling for a wildcat strike until Roger Goodell is gone and the stench of his Reign of Error has faded into the dustbin of history…

  54. so now I don’t understand how any player gets any appeal to work?

    Doesn’t the commish just say “nope, I’m right and your wrong regardless of facts?”

  55. I can see Kraft and Berman at the next house party together clinking glasses and saying, “well i tried”.

  56. Love all the haters. People forget the best NFL coach, EVER, is not suspended. He has been planning for this nearly 2 years now. Jimmy will go 3 and 1 and all the haters will be wondering what happened.

    News flash, there is no competition in the AFC East. Pats could win the division sleep walking.

    Brady was screwed, players union got screwed. I cannot wait for another in-justice to happen to another teams player and listen to the whining then.


  57. They do have a capable backup and now bulletin board fodder. Brady will play with a chip on his shoulder which will make him even more dangerous. This from a cowboy fan. But in full disclosure married to a pats fan from MA.

  58. Someone finally saw through the strategy of negotiating an agreement, and then litigating against the agreement to maximize the players position.

    If you don’t want Goodell ruling on these things, NEGOTIATE it in the CBA!

  59. I’m not a Pats fan, but I think it’s time this all ended. 4 games is too much. If Brady decided to retire right now I wouldn’t blame him.

  60. When it got cold in my town, a light appeared on the dashboard of my car. “Check tire pressure.” it said. I did nothing. When it got warmer, the light went out. Do the math.

    Federal judges like Chin are functional idiots and grafters. In this case, Jets fans, which is worse.

  61. As a “science denier,” I’m happy to be vindicated by this ruling.

    Brady is a cheat. The judges knew it. The “Ideal Gas Law,” as I have been saying for months, is scientifically “meritless.”

    Good to see cheaters finally get what’s coming to them. Enjoy the 1st round of the draft, Deflatriots fans.

    Oh wait…

  62. So you’ve been saying for months the ideal gas law is meritless’ which means you’ve been confessing for months you know nothing about science.

    My car vindicated the ideal gas law. I don’t even have to offer an opinion, which is all you did. Some people are just plain brain dead.

  63. tbone4444 says:
    Apr 25, 2016 12:30 PM
    far too many variables in the investigation of those particular balls at that particular time for the gas law to even be brought up. Anyone who is not biased and has a reasonably fair amount of science education knows this

    Well if you are not biased then you have to also label the Colts as cheaters. They played with under inflated balls in both the first and 2nd halves.

    Also if you dont buy the science (lol) How do you explain every PSI being different when they all (allegedly) started the same? Colts balls too, all allegedly started at 13, halftime they were all different…Explain please…

  64. handsofsteelhartofstone says:
    Apr 25, 2016 3:00 PM

    4 games is not enough. Not by a long shot. If I was Goodell I would suspend him for a full season now just for being a whiney little girl

    Well, were you Goodell, you could now do that, since you just paid two Federal judges to declare you omnipotent.

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