Tom Brady descends into the belly of the beast Tuesday at 9:30 a.m. to have the appeal of his four-game suspension heard by NFL Commissioner Roger Goodell.
It’s not something Brady’s particularly looking forward to, I’m told. Confrontation isn’t him. Uncertainty isn’t him. In whatever Park Avenue conference room this takes place, the air will be heavy with both.
Strange as it may seem to call one of the NFL’s greatest players a pawn in the proceedings, that’s what he is.
While Brady and his NFLPA attorney Jeffrey Kessler will be ostensibly appealing Brady’s punishment, the undercurrent to the proceedings will be waging battle against despotic abuse of power by Goodell when it comes to player discipline.
Brady’s case is an ideal one. Goodell ordered the investigation (albeit, after it had already begun on the night of the AFC Championship Game). To conduct the independent investigation, Goodell called on a firm with a lucrative and long-standing relationship with the NFL, Paul Weiss. Goodell based Brady’s discipline on Wells’ findings in a 243-page report that’s been mocked since its release for its scientific findings, derided as a “frame job” and characterized by NFLPA President DeMaurice Smith as “delivering exactly what the NFL wanted”. Goodell also cited Brady’s refusal to share his personal phone with investigators in handing down the discipline.
The Wells Report figures to be the main punching bag for Kessler. The severity of the suspension will also get a few whacks. Brady stands to lose $1.8M in salary while NFL rules suggest fines starting at $25K if it’s proven a team altered footballs after final inspection; the Carolina Panthers attempted to alter footballs this past season by heating them on the sidelines and were merely told to discontinue the practice.
As for Goodell hearing the appeal, that’s an uphill fight for the NFLPA and may not be one the PA focuses on now. The two sides agreed to allow the commissioner to continue hearing appeals when the last CBA went through. The NFLPA argued Goodell could be called as a witness and should not hear the appeal. He dismissed that with some shaky logic.
While Goodell will hear the appeal, how he rules will set the stage for the NFLPA’s next move. As SI.com’s legal analyst Michael McCann writes, “To be clear, Goodell is generally authorized to select himself as the arbitrator in discipline appeals. The National Football League Players’ Association, of which Brady is a member, has agreed that Goodell or a designee of his choosing may serve as the arbitrator for discipline appeals by players. This process is spelled out in Article 46 of the collective bargaining agreement. To be equally clear, the NFLPA has and will continue to argue that the union never agreed to allow Goodell to select an arbitrator if that selection violates federal labor law. The NFLPA successfully made this argument in Adrian Peterson’s recent lawsuit.”
If the NFLPA doesn’t like Goodell’s ruling, they can take it to the next stage which would be appealing for an injunction. If granted in a federal court, Brady’s suspension would be halted (not overturned) and the court would ask Goodell and the NFL to try again on more reasonable discipline. And then the NFL would appeal that successful appeal and away we go.
The prospect of all this takes Brady miles out of his personal comfort zone. Brady has a small coterie of people close to him including his immediate family, his agents Don Yee and Steve Dubin, his body coach Alex Guerrero and people managing his day-to-day stuff. He keeps his life simple, regimented and predictable. When he talks about elite performance, its study and repetition, study and repetition. And calm.
Now, he has a team of lawyers primed for combat on his behalf against a $10 billion per year monolith. All the guys on his side have egos and reputations at stake. And the guys on the NFL side – Goodell, Wells, NFL attorney Jeff Pash, the NFL’s operations people like Mike Kensil – have even more at stake.
There’s no way for Brady to “rep” what’s coming Tuesday. Or to predict where Goodell and the NFL’s legal team try to go. Or even to necessarily control what the NFLPA wants to do with a case that is bigger than Tom Brady.
There's no game clock on this thing either. Look at the other appeals of Goodell's discipline with Greg Hardy and Adrian Peterson and you realize that A) the NFL gets dinged up pretty well on appeal and B) they slow-play the process when they get told to try again.
Brady's going into the belly of the beast. And we will find out if he's going to have to stomach a protracted legal fight.