Lawyer’s prediction: Judge will vacate Brady suspension
There’s at least one lawyer with prior experience in Richard Berman’s courtroom who says he already has a sense as to which way the judge is going to rule in Patriots quarterback Tom Brady’s appeal case against the NFL.
“I don’t think there’s a middle ground by the judge.’’ Alan Milstein told WRKO’s Boston.com Morning Show on Thursday. “He has two choices; he can either confirm the arbitration award, or he can vacate it. And I think he’s going to vacate it.’’
Milstein has experience with litigation against the NFL, representing Maurice Clarett in the former Ohio State running back’s draft eligibility battle back in 2004. He’s also tried cases before Judge Berman, whom many thought grilled the NFL and, in particular, the Wells Report on Day One of court proceedings in New York as we reach the stretch run of the Deflategate saga.
Count Milstein among them.
“I was a bit surprised that Judge Berman went into the facts because from a lawyer’s perspective, the issue here is whether or not a judge should confirm or vacate the arbitration award, and there are very specific reasons why a judge is allowed to do that,’’ he said. “One of those is that he not disagree with the findings and facts or that he disagrees with the credibility determinations.’’
Berman seemed, in fact, to do just the opposite, calling into question the authenticity of the Wells investigation and criticizing the report for its paucity of proof and conclusions. The judge has also been steadfast in his plea to have both sides come to some semblance of settlement, but that doesn’t mean he isn’t prepared to rule in the case, according to Milstein.
“It certainly might be some kind of push to the NFL that they’re going to lose this thing, and if they want to save some face then they’ve got to take the suspensions off the table,’’ Milstein said. “But Judge Berman is more than willing to make the hard decision here. So if the NFL doesn’t essentially back off, I’ll think he’ll make it….He’s not one of those judges that’s going to waffle here and there and have a difficulty making the call. Judge Berman will make the decision.
“It’s not unusual for a judge to get the parties to resolve the case, but it’s not because the judge is disinclined to actually give a decision. Judge Berman is certainly willing to make the hard call, and I think he’ll make the call in this case and tell the NFL that they were out of bounds, so to speak.’’
Milstein said that next week’s hearing between the two sides will focus more on whether NFL commissioner Roger Goodell was a biased arbitrator (“And I think he clearly was,’’ he added), as well as whether Brady had any notice that he could be suspended for even tangentially aware that balls were being deflated.
He also expects Brady to suit up for Week One of the regular season against the Pittsburgh Steelers.
“I don’t think there’s any question that they’re going to suspend whatever award was issued until this thing is finalized, so I don’t think Brady is going to miss any games in the beginning,’’ Milstein said.
But what if the NFL decides to appeal the decision in a Second Circuit venue? Would Brady possibly be risking serving his suspension in a more dire stretch of the season?
“Is it possible that the judge vacates the award and the Second Circuit reverses? I guess it’s possible, but I think if the judge vacates the award you can more or less bet the second circuit is going to more or less confirm that vacation,’’ Milstein said.
However, Milstein’s experience, at least with the Clarett case over a decade ago, is quite different. Claret won his initial case only to have it overturned in the Second Circuit Court of Appeals.
Either way, the lawyer sees good news by the requested Sept. 4 deadline for both Brady and the Patriots.
“The whole purpose of arbitration is so that the parties don’t have to worry about appeals, that their attorney fees are less, and that the thing gets resolved quickly, and that’s certainly not the case here, is it?’’ he said.
Robert Kraft and Roger Goodell through the years
[bdc-gallery id=”463031″]
To comment, please create a screen name in your profile
To comment, please verify your email address
Conversation
This discussion has ended. Please join elsewhere on Boston.com