The Final Countdown: What to Expect from Brady’s Last Hearing

The end of Tom Brady’s case before Judge Berman is rapidly approaching.  That does not mean his case will be over, just that Berman will play less of a central role in it very soon.  Barring any unexpected last-minute settlement, both the NFL and NFLPA will be back in Berman’s courtroom on Monday, August 31, 2015, for a final hearing on the case and discussions with Berman.  Both Roger Goodell and Tom Brady will be there, as ordered by the judge.  So what should we be expecting at this last court appearance?

The Dueling Letters

The latest significant development in the case was the filing of dueling letters by the NFL and NFLPA.  In the grand scheme of things the letters do not mean much.  The NFL’s letter was an attempt to distinguish the NFLPA’s case law, which NFLPA attorney Jeffrey Kessler submitted to Berman at oral argument.  As I said when it was filed, the problems with the NFL’s letter were that it did not address Berman’s clear concerns during oral argument and it attempted to distinguish the NFLPA’s cases without recognizing how they related to the NFLPA’s arguments, making it effectively nonresponsive.  The NFLPA’s letter made these same points in response, reiterating that the NFL’s explanation of the cases still fit the arguments the NFLPA was making to Berman and did address Berman’s concerns.

So do the letters mean anything and how will they impact the case?  It’s unlikely that the letters had any influence over what Berman is thinking about the case or how he will rule.  Berman was likely already familiar with many if not all of the cases Kessler cited, and he and his staff will already have their own understanding of what those cases mean for the case, without relying on either the NFL’s or NFLPA’s interpretation.  If the cases mean anything, they are just one more indication that the NFL does not appear to be paying close attention to Judge Berman’s concerns in the case, though that reaction is not of special significance to the final outcome.  Berman may comment on the letters at the hearing, but he may not address them at all.  If he does, he is unlikely to pass judgment about the merits of the letters and more likely to simply let the parties know that he has reviewed them.

What Will Judge Berman Say?

Berman has previously stated he will try to issue an opinion by the requested September 4, 2015 date, before Brady’s suspension goes into effect.  However, he did ask both parties not to hold him to that hard deadline.  There is the possibility that Berman will rule from the bench, verbally informing both sides of his decision.  He could also release a written decision in conjunction with his ruling explaining in more detail his reasons for ruling.  It bears repeating that Berman has read a lot of materials on this case.  From the Wells Report, to Goodell’s hearing and decision, to the briefs of each party and relevant case law, Berman has probably read more for this case than most people read in a year.  Andrew Sensi and I discussed the possibilities of what Berman’s decision may look like and how those possibilities may play out here and here respectively, so I won’t revisit that discussion now.  But it certainly is possible that we could have a decision from the judge on Monday.

However, I think it is more likely that Berman will wait to issue a decision until September 4th, even if he already knows how he will rule.  Berman has consistently informed the parties that he would prefer them to settle rather than being forced to issue a decision.  He might tell both sides that he has a good idea of how he will rule and that he will issue his decision if there is no settlement by September 4th.  This gives both sides a hard deadline by which they know they have to reach a settlement or take the plunge of dealing with what Berman decides and going through the appellate process.

He may even take both sides into chambers and attempt to mediate a settlement between them, or at least to get an update on whether their offers have changed.  Although a settlement remains unlikely, as I’ve discussed previously, it may be a more attractive decision for the NFL after Berman’s unfavorable questioning of the league at oral arguments, and Brady still has incentives to settle to avoid the uncertainty of further arbitration and appellate rulings.

It’s also important to note that, contrary to what many fans may be expecting, Berman’s decision will likely not be the end of this case.  If Berman rules against the NFL, expect the league to appeal the decision in an attempt to defend the powers of the commissioner.  And depending on how he decides, Brady’s appeal may go back to another arbitrator who will determine whether to uphold his suspension or not.  For now, we’re counting down until we hear Berman’s words in court and read how he actually decides the case.