Tom Brady: Four Games? Maybe.

How many games will Tom Brady actually miss. 

Every pre-season we are faced with a number of marquee fantasy players facing lengthy suspensions and this year is no different (see Le'Veon Bell). The latest culprit is the NFL’s golden boy, Tom Brady, for his involvement in “Deflategate.” On behalf of the NFL, independent investigator Ted Wells, led a lengthy investigation into the charges of illegally deflating footballs below their required pressure amounts and concluded that it was "more probable than not" that Tom Brady was "generally aware" of tampering with NFL game footballs during the 2015 AFC Championship Game.

Despite only finding probable evidence of Brady’s involvement, the league dropped the hammer, slapping him with a four game suspension without pay. The NFL also stripped the Patriots of their first round pick in 2016, a fourth in 2017 and fined the team a million dollars.  Even though much of the evidence against Brady is circumstantial, the NFL clearly didn’t find Brady to be credible in their eyes and his lack of cooperation in the investigation and his refusal to hand over text messages didn’t help.

The Patriots and Brady have come out swinging though and there is reason for optimism that Brady’s suspension could be reduced or delayed.  The Wells report is only the first step in this lengthy process and there will be many more hurdles to jump before we know how many games Brady will actually miss.

The Patriots released a scathing rebuttal to the Wells report today by creating a website that challenges many of the findings that Wells made. The site argues that the Wells Report was incomplete, incorrect and lacked context. The website goes on to state that, "There is no evidence that Tom Brady preferred footballs that were lower than 12.5 psi and no evidence anyone even thought that he did."

The National Football League Players Association (NFLPA) also filled an appeal today, but under the collective bargaining agreement between the league and the NFLPA, appeals are to be heard and resolved by Goodell or a person appointed by him. Somewhat suprisingly, the appeal is going to be heard by Goodell himself since technically the discipline handed down so far was imposed by league executive vice president, Troy Vincent, and not Goodell.

If Patriots owner Robert Kraft, who also happens to head the compensation committee that pays Goodell, really puts the pressure on, we could certainly see some back door comprise reached to reduce the suspension.  While missing the opening night against the Steelers would be brutal for the team and NFL ratings, easier games against Buffalo and Jacksonville won’t be as hard to swallow. The Patriots then go on bye and return with a high profile matchup against the Dallas Cowboys in week 4. Missing four weeks but only three games seems like a nice compromise without anyone losing face and each party being able to claim victory.  

If Brady’s appeal is unsuccessful, or he is unhappy with any sort of reduction, he can take the case to federal court and seek an injunction that allows him to play while the case is waiting to be heard.  For his part, Brady is bringing in the big guns by hiring notable labor attorney, Jeffery Kessler, who has successfully sued on behalf of the players’ unions of all four major North American pro sports leagues. Most recently Kessler represented the NFL Players Association in the Saints bounty scandal, victoriously arguing to have the players’ suspensions vacated.

The biggest problem facing Brady with the court option is that he would have to testify under oath and most likely give up his cell phone records during discovery- two things I highly doubt he would ever want to do over a relatively minor four game ban, unlike Jonathan Vilma in the New Orleans Saints bounty scandal case, who was facing a year ban and was more than happy to have his day in court. But the mere filing of a court case could provide Brady and his team with some leverage to force the league to come to some sort of better resolution even if they never intend to go to court.

This whole process could take months and unless there is a compromise, we may have no clarification on how many games Brady will miss any time soon. The NFLPA appeal most likely won’t be heard until sometime in June, with a ruling being handed down in July and if there is a federal court filing, that pushes us all the way into August and the start of the regular season.

In the NFL, Commissioner Roger Goodell is the prosecutor, judge and jury, so Brady escaping without any sort of suspension is just not going to happen. There is no way the league is going to come out and say they got it wrong, apologize to Brady and beg him for his forgiveness, especially without the case fully going to court. So Brady is going to miss time.  

In the Saints bounty case, ex-Comissioner Paul Tagliabue upheld the factual findings by the league but overturned the suspensions of the players. In that case, Tagliabue wrote that though Goodell’s findings could justify fines of the players, “this entire case has been contaminated by the coaches and others in the Saints’ organization.” The suspensions of the Saints coaches and GM all stood. In this case, I can see the league agreeing to reduce Brady’s suspension while still holding the team liable. My prediction is that Brady will likely miss three games, although I wouldn't rule out mising just opening night depending on how things unfold over the next few weeks. 


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