comscore Tom Brady’s ‘Deflategate’ appeal rejected by federal court
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Tom Brady’s ‘Deflategate’ appeal rejected by federal court

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    New England Patriots quarterback Tom Brady faced reporters before a scheduled Jan. 6 football practice in Foxborough, Mass. A federal appeals court today has rejected Tom Brady’s attempt to get a new hearing on his suspension.

NEW YORK » Quarterback Tom Brady’s last best chance to avoid serving a four-game “Deflategate” suspension to start the new season was flatly rejected today by an appeals court.

The 2nd U.S. Circuit Court of Appeals in Manhattan issued a one-sentence rejection of requests by the National Football League Players Association and Tom Brady to reconsider an April decision that found NFL Commissioner Roger Goodell acted within his powers by upholding a four-game suspension of the star quarterback for his role in a scheme to doctor footballs used in a January 2015 playoff game.

The court’s action leaves intact the 2-1 ruling by a three-judge panel that affirmed wide-ranging powers given to the commissioner by the NFL’s collective bargaining agreement. It was a setback for organized labor groups arguing for due process in employee discipline.

The players association and Brady had requested that the three-judge panel reconsider the case or that all the 2nd Circuit judges hear arguments and decide anew.

Brady’s remaining hope is to appeal to the U.S. Supreme Court.

The Patriots open the season Sept. 11 at Arizona. If Brady is suspended, backup quarterback Jimmy Garoppolo would take his place.

Lawyers for the players association, the NFL and Brady did not immediately return message seeking comment.

Anthony Barkow, a lawyer who submitted an amicus brief on behalf of Kenneth R. Feinberg, the special master of the Sept. 11 Victim Compensation Fund and a longtime arbitrator, said: “We wish the result were otherwise, but respect and understand the decision and know that it is extremely rare for the Second Circuit to grant en banc review.”

What began as an accusation of cheating in the 2015 AFC championship game has grown into a multimillion-dollar legal battle over three NFL seasons, involving not just an MVP quarterback but also some of the elite lawyers and scientists in the country.

And as it developed, it evolved from a silly little dispute about the air pressure in footballs into a referendum on the powers of a sport’s commissioner and the right of all unionized employees to due process in a disciplinary hearing.

Joining the case along the way were longtime league adversary Jeffrey Kessler and former U.S. Solicitor General Ted Olson, who was involved in the Bush v. Gore lawsuit that settled the 2000 presidential election and the case that overturned California’s ban on same-sex marriages. Piping in with friend of the court briefs were the AFL-CIO and scholars from some of the top legal and scientific institutions in the country.

At stake for the Patriots was not only the availability of their quarterback for a quarter of the season, but their legacy as an NFL dynasty. Already convicted once of cheating by Goodell — in an illegal videotaping scheme in 2007 that predictably came to be known as “SpyGate” — the Patriots saw the suspension as an attack on their legitimacy of the four Super Bowl championships earned under Brady and coach Bill Belichick.

The suspicions boiled over on Jan. 18, 2015, when the league tested — somewhat unscientifically, it would belatedly learn — the footballs provided by the home team for the AFC title game against the Indianapolis Colts and found them to be underinflated.

After three months, league investigator Ted Wells found that the Patriots intentionally used underinflated footballs in the game and that Brady was “at least generally aware” of the scheme. The NFL suspended the four-time Super Bowl champion quarterback four games and docked the team $1 million and two draft picks.

Brady appealed — first within the league, and Goodell affirmed the decision. Brady appealed to federal court, and U.S. District Judge Richard Berman overturned the suspension. The league appealed to the 2nd Circuit, and the three-judge panel reinstated the original penalty.

That left Brady hoping for a new hearing in front of the complete circuit — called “en banc” — or an even more unlikely hearing at the Supreme Court.

“That’s always an option to litigants,” Olson said after joining the case. “It is not something we have resolved ourselves to doing.”

New England fans rallied behind their quarterback, putting “Free Brady” on T-shirts, reciting the Ideal Gas Law from memory and giving a hero’s welcome not only to the quarterback when he took the field for the 2015 regular season opener but also to Kessler and U.S. District Judge Richard Berman — whose ruling for Brady would later be overturned on appeal.

But in other NFL cities, fans were just as convinced that the Patriots and Belichick were up to no good. Added to the videotaping penalty — along with Belichick’s tendency to stretch the rules to their limits, or occasionally beyond — it was seen as confirmation that the team can’t win without cheating.

The court’s decision is unlikely to change minds on either side.

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    • Obviously you haven’t read I suggest you read:

      From the article: AEI’s principal observation was that the NFL’s investigators were mistaken in relying on footballs used by the Indianapolis Colts in the same game as a control group, i.e., an assumption that they were otherwise identical to the Patriots’ footballs and that any deviation from the Colts’ air-pressure measurements would indicate wrongdoing by the Patriots.
      The key flaw in that assumption was that the checks on the air pressure of the Colts’ footballs came at the end of halftime when the footballs had been indoors at a warmer temperature and thus had naturally re-inflated while the Patriots footballs were checked at the start of halftime when the effects of the cold, rainy weather would still have depressed the measurements.

      As the AEI economists wrote, “Logistically, the greater change in pressure in the Patriots footballs can be explained by the fact that sufficient time may have passed between halftime testing of the two teams’ balls for the Colts balls to warm significantly, effectively inflating them.”

      To downplay this key variable in the NFL’s report, outside counsel Ted Wells sought to compress the gap in time between when the air pressure of the Patriots’ footballs was measured and when the Colts’ footballs were tested. Wells asserted that the measurements followed one after the other, but other evidence and conflicting recollections by the NFL officials involved in the testing suggest that the Patriots’ footballs were tested and then re-inflated before the officials turned to the Colts’ footballs, measuring only four because they ran out of time.

      I suggest you read the entire article plus others on this site. I am not a NE fan, but this was just sloppy all the way and this should not be tolerated. I am glad that I have lost interest in a sport that has so little regard for the truth.

    • Another sad day for science. The real cheaters are all the team owners who pressured Goddell to distort the facts and go after the Patriots because they’re tired of being repeatedly beaten by them over the years.

  • Just serve the suspension and move on already. Time for this to go away already. He can rest up too and be fresh by the time he comes back and everyone else is all banged up.

  • With all of the very real problems confronting humanity in 2016, does anyone with half a brain really care? Whoops I betrayed myself by saying “half a brain.”

    • Yes people should care. This is an example of a large organization using their power to squash someone who disagrees with them. It wouldn’t be bad if they had science behind them but this is just an example of an imaginary fear run amok.

  • The latest from Consortium news on this phony issue:

    Some of it: Based on the NFL’s own depiction, here is the essence of its conspiracy theory: Before the AFC Championship game on Jan. 18, 2015, Brady conspired with two locker-room employees to have one of them insist to the officials that the Patriots’ game balls be set at the lower legal limit of 12.5 pounds per square inch, but then took advantage of the fact that the NFC Championship game went into overtime (forcing a delay in the start of the AFC game) so he could carry the game balls down to the field unattended, slip into a bathroom and hastily release tiny amounts of air from the Patriots’ footballs, supposedly to give Brady some advantage (although the reduced air pressure would actually make the footballs slightly slower and easier to defend).

    Though normally I cover government-related topics, one reason that I have written about this case is because I have seen this pattern repeat itself again and again. When a powerful entity wants to impose its judgment on a weaker one, the powerful entity – often relying on clever lawyers and exploiting media allies – almost always carries the day.

    In the “Deflategate” case, the distortions have extended into the news media where, for instance, ESPN, which has a multi-billion-dollar relationship with the NFL, has essentially ignored the findings of many reputable scientists who disputed the NFL’s scientific claims.

    ESPN’s “Sport Science” did do a segment showing how miniscule the effect would be from a slight reduction in pounds per square inch of a football (mostly negative by making the footballs slower and easier for defenders to reach).

    But ESPN’s investigative unit “E:60” only dealt with the scientific PSI dispute earlier this year in a cute segment showing how a seventh-grader named Ben Goodell (no relation to Roger) won a science-fair prize by demonstrating that weather conditions explained the drop in the footballs’ internal pressure.

    When power and truth clash, power almost always wins.

    [For more on this topic, see’s “NFL’s War against Facts and Reason”; “A Deflategate Slap-down of NFL, MSM”; “The Tom Brady Railroad”; and “Tom Brady and Theoretical Crime.”]

    The hell with such a bankrupt game.

    • You know Boots, you write well, your information is spot on and accurate, and you have passion but people no kea. Really. I watch people pull up to an open parking stall, park there, walk away with out reading the No Parking Sign posted right next to the stall. I then cited them. Before that I use to warn them all the time till I got tired, but I do enjoy your posts.

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