A Deflategate Settlement Wouldn’t Benefit Tom Brady or the NFL

Photos via AP

Deflategate isn’t about deflated footballs. It’s all about leverage, and that’s why the two sides are at a standstill.

Prior to Wednesday’s settlement hearing, ESPN’s Adam Schefter reported Tom Brady would be open to accepting a suspension, but only if it would be for failing to cooperate with the investigation. Then Judge Richard Berman beat up the NFL in court, and the Boston Herald’s Jeff Howe said any reports that Brady is willing to accept a suspension are false.

So here we are: seven months into the Deflategate saga, and still no compromise. It might be easier to get a toddler to eat vegetables than it is for Brady and the NFL to make a deal.

One of the reasons for that is that both sides appear to have more of an incentive to lose than to settle. Jason Bonk, an attorney at Cozen O’Connor in New York who represents teams, owners, and athletes, says this is all about positioning for the next round of collective bargaining negotiations, which are expected to take place in 2020.

“There are inflated egos about deflated footballs, and there is a lot of leverage trying to be gained for the next round of collective bargaining,” Bonk says. “The important thing for the Players’ Association is not Tom Brady’s image. The important thing for the PA is to say, ‘Roger Goodell, it violates fundamental fairness—even as a matter of the contract that is the collective bargaining agreement—for you to be the judge, jury, executioner, and make the initial finding, plus be the arbiter on appeal.”

The issue at play here is Article 46 of the CBA, which says the commissioner has absolute power to impose discipline and designate the arbiter to handle any appeal regarding conduct that is deemed detrimental to the integrity of the game of football. That is a provision that has been in the CBA since it was first signed in 1968, and now the Players’ Association sees an opening to change it.

Over the last couple of years, the Players’ Association has had success fighting Goodell in arbitration and in court. Arbiters vacated the Bountygate and Ray Rice suspensions, and a federal judge in Minnesota overturned the Adrian Peterson suspension in March. Goodell appears to be vulnerable, and the NFLPA is going in for the kill.

The NFL, meanwhile, likely sees this case as a way to reassert its dominance in disciplinary matters.

“We’re in a world where we’ve got Rice, Peterson, [Greg] Hardy, and a series of off-field conduct issues,” Bonk says. “The NFL wants to make a statement and set precedent for the next round of collective bargaining, and what better opportunity than on-field conduct that was potentially wrong by the golden boy. And the NFLPA comes back, and says, ‘What better way to leverage some reduction in power that Roger Goodell might have?’”

If a settlement is reached, both sides would be in danger of setting a dangerous precedent. Vern Inge, a sports law attorney at LeClairRyan in Virginia, says the NFL and NFLPA aren’t in a position to make any concessions.

“The problem is, the NFL has a disincentive to agree [to a settlement], because they have taken the position that Brady knew all about this,” Inge says. “They’re going to be publicly embarrassed in some way if they agree that Brady just failed to cooperate.

“Another problem with it is the NFLPA may push Brady to avoid such a settlement, because if they agree to failure to cooperate, and then the NFL imposes a suspension, that would give Goodell the power to suspend a player for failure to cooperate in other disciplinary things. Right now, the NFLPA is arguing Goodell has never imposed that before for these type of infractions, and therefore would be barred from doing it.”

Ultimately, the chances of a settlement appear to reside almost entirely in Brady’s court. This case will probably continue well past the start of the season, as the losing side will likely appeal Judge Berman’s decision. If the NFL agrees to exonerate Brady from the integrity of game charges and just discipline him for noncooperation, TB12 may be tempted to take it—even if the Players’ Association advises him not to.

However, as ESPN reported last week, the NFL is supposedly insisting that Brady admit guilt and accept the findings of the Wells Report in any settlement agreement. That seems to be a nonstarter—not just from a PR perspective, but from a legal one as well. Brady said under oath at his appeal hearing in June he had no knowledge of the alleged ball deflation scheme. If he admits guilt now, he could open himself up to possible perjury charges.

The NFL has no incentive to compromise, which means Brady doesn’t right now, either. So expect Deflategate to continue dragging on, all for the sake of changing an article of a legal document that most fans probably had no idea existed before.