KRAVITZ: NFL needs to step back and settle with Brady – now

Tom Brady, right, arrives in New York
Bob Kravitz

We’ve heard snippets of information coming out of Judge Berman’s courtroom Wednesday morning and early afternoon, and based on those snippets, I’ve reached two conclusions.

Conclusion One: Judge Berman isn’t exactly Ruth Bader Ginsburg. I say this because he made the point that in the second half of the AFC Title Game against the Colts, Tom Brady had more success with the properly inflated footballs than he did in the first half with the under-inflated footballs.

Tell me, how is that in any way germane to the discussion here over whether Brady and the Patriots cheated and whether Brady received due process from the National Football League? That sounds like something a New England fan named TB12IsGod might tweet to me. It is completely and utterly immaterial to the issue at hand.

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This is like saying, “Well, A-Rod is having a better season when he’s ostensibly not using performance-enhancing drugs, so he didn’t gain any competitive advantage from steroids; ergo, his cheating can be excused.’’

I remember talking to a college basketball coach who was popped by the NCAA for improper inducements to a recruit. His response to me was, “Well, the recruit never played for us, we never got a competitive advantage from his presence, so we don’t deserve this penalty.’’

I feel like I’ve walked into an ethical alternative universe.

Conclusion 2: This is based on Conclusion 1, and the fact that this judge thinks Brady’s second-half performance mattered – which, of course, it didn’t. Specifically, the NFL needs to step back and accept some kind of settlement in this case, or it’s going to end up with zero suspension and a lot of egg on its face. Because again, based on the limited information that is coming out of his courtroom, it certainly sounds like he’s inclined to ultimately rule in favor of Brady.

I’ve been saying and tweeting this for a couple of days now: They should settle on a one- or two-game suspension for lack of cooperation, no admission of guilt and let everyone get on with their lives. Now, would Brady and his lawyers accept those terms? I have no way of knowing. It sounds like they’re dug in, just as the NFL is dug in deep.

But if I’m the NFL, and Judge Berman is actively asking the league where there proof of Brady’s involvement in this scheme resides, I’m tucking tail and getting whatever I can – if only to save face.

Even the staunchest critic of the Patriots’ role in all of this concedes this much: The weakest part of the Wells Report involves its efforts to pin the deflation effort on Brady. I’ve read the Wells Report four times. I read the Brady appeal transcript once. I read the NFL and NFLPA’s briefs to the court. And it’s clear there’s no so-called smoking gun as it related to Brady. There’s behavior suggestive of a conspiracy, no question about that, but nothing that’s stronger than that.

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Now, a sane person can deduce that there’s no way those two equipment guys would have deflated the balls without Brady’s knowledge or consent – and that’s what I believe --  but the Wells Report fails to do much more than attempt to connect the dots and rely on circumstantial evidence. The Wells investigators probably would have done a better job had Brady made his phone available – oops! – but without it, they are reaching.

And Brady, his lawyers and now Judge Berman all seem to have concluded exactly the same thing.

“More probably than not’’ should be enough in a case like this, which is akin to a civil case in the real world. But this judge wants a smoking gun, and a smoking gun doesn’t exist. It might exist at the bottom of the Charles River, but it doesn’t do the NFL any good there.

It’s time for the NFL to back off, to the extent that’s possible. Already, they’ve stepped in it several times, the most glaring example being their failure to expeditiously set the record straight on the inaccurate ESPN story that reported that 11 of 12 balls were two PSI below the limit. According to the Wells Report, eight of 11 balls were below the acceptable psi by varying degrees, but not by two full PSI. The NFL is usually quick to set the record straight on reportorial inaccuracies, but their failure to do so in this instance adds fuel to the notion that they had it out for the Patriots.

Do I believe that was the case? I do not. I think the last thing the NFL wanted to do was to stain the flagship franchise of the league, and more specifically clip Brady’s angel wings. It looks terrible for the league when the reigning Super Bowl champion is left to answering questions about the Ideal Gas Law and other physics-related subjects.

But the worm is turning. Troy Vincent sounded lost during the Brady appeal. Commissioner Roger Goodell came off as utterly ineffectual and dim in the Brady appeal – to say the least. And give Brady’s lawyers credit; they’ve come charging out of the gate, and they’ve never repeated the absurd contention that the “Deflator’’ was simply a stout fellow attempting to lose weight.

Do I believe the Patriots purposely deflated some of those footballs? Yes, I do. And I think the Exponent people did a tremendous job making the scientific case while pointing out the flaws in the case made by Brady’s experts and AEI, among other folks. I believe that human tampering was involved. And I believe the Wells investigation did a strong job of making that case, which ultimately resulted in the million-dollar fine and the loss of two draft choices – which is no small penalty, especially the lost draft picks.

Do I believe Brady was involved? It just makes sense that he was. But when it comes to actually proving it, or coming close to proving it, the Wells Report generally failed to make a thoroughly persuasive case. Now again, the burden of proof here is not “beyond a reasonable doubt.’’ This is not a criminal case. But listening to what’s coming out of Judge Berman’s courtroom, it wouldn’t appear that Berman is leaning in the NFL’s direction.

It doesn’t take a genius to read the tea leaves. This is all starting to head south for the NFL, which can’t afford to take another shot across the bow. As it is, NFL owners are growing tired of Goodell’s missteps; he’s in a position where he needs to save what’s left of his reputation.

To put it in football terms, you just have to know when to take the sack or throw the ball out of bounds. Well, it’s time for the NFL to live for another play. This judge sounds more like a fan than he does a federal arbitrator, and based on what we’ve heard Wednesday, it sounds like he’s leaning in Brady’s direction. Make a deal, fellows. My legal advice is free, by the way.

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