What might NFL be considering as Tom Brady awaits Deflategate appeal ruling?
It has been remarkably quiet in the month since Tom Brady slipped out of NFL headquarters through a garage following his lengthy Deflategate appeal hearing.
Now, as the New England Patriots quarterback and NFL Players Association await NFL Commissioner Roger Goodell's ruling on whether to uphold, reduce or overturn Brady's four-game suspension, the threat of a lawsuit looms. It may be a ploy, just leverage for Brady and the union to get the punishment erased. Yet some maneuverings that could help prevent a suit may be taking place right now behind closed doors.
Jodi Balsam, who served as the league's counsel for operations and litigation from 1994 to 2002 and as counsel for football operations from 2002 through 2007, believes both sides have been in contact since the conclusion of the appeal June 23.
"I do think they're negotiating," Balsam, an associate professor and director of civil externship programs at the Brooklyn Law School, told USA TODAY Sports by phone, though admits she doesn't have specific knowledge about Brady's case.
"They may be back-channel conversations, but what the NFL wants is to get an implicit agreement from Brady's people that a reduction in the number of suspended games would resolve the issue and put the brakes on any further litigation."
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However Brady's camp and the league may be too far apart, given the NFLPA wants Brady fully exonerated — something Goodell may be unwilling to do.
David Cornwell, a partner at Barnes & Thornburg LLP who has represented players such as Jameis Winston and Jonathan Martin over the years, cited several examples of when he has been a part of these behind-the-scenes conversations with the league, such as when the NFL suspended several players, including Pro Bowlers Kevin Williams and Will Smith, after testing positive for a banned diuretic called StarCaps. The case took years to resolve.
"I've been in the room for those discussions numerous times, and they're just not productive," Cornwell told USA TODAY Sports in a phone conversation. "I'm not in the room for these discussions with Brady. I have a sense of what's going on from my discussions with others that are, and it's that they're two ships passing in the night. They're not connecting."
According to a person familiar with Brady's case, the three-time Super Bowl MVP intends to take the NFL to federal court if he continues to face a suspension of any form after Goodell issues his appeal ruling. But Brady could change added the person, who spoke under the condition of anonymity because the person wasn't authorized to speak publicly on the case.
Ultimately, however, it may be a bluff.
"Just the idea that this suit might be brought is reason enough to give the NFL some pause that even winning might bring out unflattering information and bad publicity that the league seems particularly concerned about avoiding," said J. Gordon Hylton, professor of law at the University of Virginia and member of the board of advisors at the National Sports Law Institute.
"The fact that Brady could credibly bring these legal options may give him more leverage in a settlement or could tip the commissioner to some sort of mitigation of the penalty."
Goodell's decision, no matter which way it goes, could have far-reaching effects.
"You know what they say: 'Pray for peace, but prepare for war,' " Balsam said. "The NFL has to be preparing for war, too."
If Brady isn't cleared, the NFLPA could file a federal complaint with a request for a temporary restraining order that would allow him to play while the legal process runs its course. Though the union has had success winning recent cases against the NFL, the league's losses don't seem to be a deterrent to issuing harsh penalties.
Federal Judge David S. Doty's reversal of Adrian Peterson's discipline joins former federal Judge Barbara S. Jones' decision to reinstate Ray Rice as two high-profile cases the league has lost in independent arbitration in the last nine months. Dallas Cowboys defensive end Greg Hardy appealed a 10-game suspension in March for his role in a domestic violence case. The league announced earlier this month that the suspension was upheld but reduced to four games, and the NFLPA is currently considering whether to take Hardy's case to court.
"I think if Roger Goodell doesn't appropriately reduce Brady's outrageous suspension, he runs the risk of — yet again — going to a neutral arbiter and losing," said Mark Schamel, a partner at Womble, Carlyle, Sandridge & Rice who has represented Richie Incognito and Von Miller.
"At some point, team owners have to ask themselves: 'Wait a second, what are we doing?' As far as all the internal communications that would be revealed in court, nobody in the NFL wants the world to see how the sausage is made."
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Follow Lorenzo Reyes on Twitter @LorenzoGReyes