NEW YORK – Daniel Nash stood behind a courtroom lectern on the 17th floor of a federal court house here and tried to argue the NFL's case in suspending Tom Brady for four games in the deflate-gate saga.
Yet as the attorney made his presentation he kept getting interrupted by Judge Richard M. Berman, who repeatedly engaged in direct counterarguments against Nash, sometimes even warning that legal precedent suggested the NFL could lose its case.
It happened over and over during Nash's 63 minutes in front of the judge and with each Berman question or counterpoint, none of them positive for the NFL, Nash began taking a small, but telling, step back from the lectern, like a boxer retreating in the face of an incoming haymaker.
He may have expected to duel NFL Players Association attorney Jeffrey Kessler here. He probably wasn't expecting the judge to be even tougher on him and it figuratively rocked him.
Berman reminded everyone last week not to read too far into the tone and frequency of his questions to lawyers because it wouldn't necessarily reveal his feeling on the case. This week he didn't repeat the request.
Not that it would've mattered.
Berman could still rule for the NFL and could just be playing Devil's Advocate – this is a United States District Court, not a political debate – but it sure didn't feel that way here on Wednesday morning. One example among many?
"There has to be some basic process of fairness that needs to be followed," Berman argued to Nash after the NFL explained why it failed to allow Brady to question certain witnesses, notably general counsel Jeff Pash, who also co-wrote the disputed Ted Wells report about deflated footballs.
When Nash tried to argue that Pash wasn't that involved and was more of an editor, Berman, like this was a cross-examination, pointed to an NFL press release that referred to Pash as "co-lead." Nash, stepped back from that lectern, again tried to minimize it as just a press release.
"Well," Berman said, "it's not my press release. You all wrote it."
This is how it went, over and over. For the NFL, this was, if not, ugly, then at least concerning. For the NFLPA, well, its 10-person legal team nearly skipped out of court after making an impassioned multi-point claim against the decision by commissioner Roger Goodell to uphold Brady's discipline.
Kessler and the NFLPA argued that the league never provided notice to Brady that "general knowledge" of an infraction could lead to a suspension, that it didn't allow a fair arbitration system, that Goodell knew he was compromised as an arbiter because he had previously praised the findings of Wells' report, that the commissioner improperly increased the findings against Brady from "generally aware" to a full participant in a "scheme" based on no authority and no additional information, that the science of Wells' report was junk, that the NFL didn't provide attorney notes to the NFLPA in violation of federal standards and … so on and so on.
Kessler, as is his way, was often flamboyant and laced his presentation with comic ridiculousness. He noted, for instance, that the footballs were, on average, just 1-2 percentage points underinflated and yet the NFL deemed it a grand conspiracy despite not being able to accurately measure the inflation levels. He likened it to getting pulled over for being 1 mile per hour above the speed limit and asking the police officer how he measured the speed.
"I counted, 'One Mississippi, two Mississippi, three Mississippi, and I can tell you were 1 mile over,'" Kessler said, role-playing a cop.
Then there was this one from Kessler: "No one in the NFL knew anything about Ideal Gas Law, which is surprising because I think I studied that in ninth-grade science class."
Even Berman laughed at that.
Nash's basic counter was that under the collective bargaining agreement, Goodell has sweeping power and, essentially, even if the system set up is imperfect or objectionable, so what? Goodell, he said, is the arbiter and arbiters make rulings and the court is obligated to respect it no matter the fanfare surrounding the case.
"This is a disputed grievance," Nash argued.
It may be a salient legal point and one that will win the case for the NFL. Berman, though, didn't appear moved by it. The judge repeatedly noted that just because something is collectively bargained doesn't mean it can violate federal law.
For instance, Berman didn't just nod when Kessler argued that it says nowhere in NFL policy that a player can be suspended – or punished at all – for being "generally aware" of the conduct of others. He even added his own points, returning to the critical sentence of Wells' report: "it is more probable than not that Tom Brady was at least generally aware of the inappropriate activities of [Patriots employees Jim] McNally and [John] Jastremski involving the release of air from Patriots game balls."
Why, Berman kept asking, didn't Wells include a reference to the AFC championship game or even the date of it, Jan. 18, 2015?
"To me it is a conspicuous absence from Mr. Wells' finding," Berman said, noting that game and that game alone is what is in question here, not text messages referring to past games. "Why wouldn't you – he's a smart lawyer – say on January 18, 2015?"
Nash argued that it wasn't needed because the impetus for Wells' report was the AFC title game. Berman said that gave him, "some pause" and called it a leap to just base everything on "probably done it before or some guy from the Colts saying they do it all the time."
As an appreciative Kessler noted later to more courtroom laughs, "Your Honor is spot-on."
Berman also focused on how the NFL came up with the four-game standard, drilling Nash over and over about where this number came from, how much of it was about non-cooperation and how much for the footballs. Kessler argued that the crime was similar to stick 'em on a receiver's hands or any other act like that, which under NFL policy is subject to a four-figure fine for the first offense, not a suspension.
Nash said Goodell decided to liken it to performance-enhancing drugs, which Berman couldn't fathom.
"How is it equal to steroid use?" the judge asked with a tone of disbelief. "How did he pick steroid use?"
"I think the judgment goes to the integrity of the game," Nash defended.
"Everything goes to the integrity of the game," Berman said.
As for Brady not being allowed to question Pash about his role in Wells' report, Berman blasted Goodell's reasoning that it wasn't allowed because the testimony would be "cumulative."
"How would you know?" Berman asked if Pash didn't testify. When Nash downplayed Pash's contributions, Berman had none of it.
"Who else but Mr. Pash had the opportunity to edit the Wells report before it became public?" Berman asked. "Anybody?"
Nash returned to the CBA, which he says allows Goodell, as arbitrator, to make these calls.
"Under the law the arbitrator doesn't have the authority to determine evidence will be cumulative. They can not just conclude that. I would ask you, who else but Mr. Pash could have given testimony about his edits or how extensive they were? Who else could have possibly given the testimony of Mr. Pash? … What I am saying is it's not sufficient to just conclude his testimony would be cumulative."
There was more, of course. A lot more. On every one of Kessler's points, Berman seemed to take a sympathetic stance and in turn was adversarial to the NFL. What that means in the end isn't determined, but consider toward the end, after Berman went after Nash for the suggestion that you could infer Brady was cheating because he stated that his preferred inflation level was 12.5 pounds per square inch, the legal limit. How, Berman wondered, could wanting the legal limit be a sign of illegal behavior?
Kessler obviously agreed and since he was pressed for time tried to paraphrase Brady's testimony on the subject. Berman stopped him, said he was allowed extra minutes and then requested that Kessler read Brady's exact words into the record. Kessler eagerly complied, reading in open court and for the court reporter a long session of Brady's testimony that can only be considered pro-NFLPA.
If you can't read into that, well …
Berman continued to encourage both sides to reach a settlement and said if one isn't reached, he wants everyone back here in Manhattan – Brady and Goodell included – on Aug. 31. He all but promised a ruling one way or the other by Sept. 4 prior to the NFL opener.
Anything can happened in a federal case, but with each jarring blast from the bench on Wednesday, with each step back from that podium by Daniel Nash before attempting a response, the NFL may want to think long and hard about pressing Judge Richard Berman for his full and unvarnished opinion.
It sure sounds like a guy ready to unload on them.
