NFL.com’s Judy Battista joined Middays with MFB on Wednesday afternoon to talk about the potential settlement between the NFL and NFLPA along with Tom Brady‘s chances going forward. To hear the interview, go to the MFB audio on demand page.
Battista wrote in her most recent article that there had been settlement talks between the NFL and NFLPA to try to avoid going to court, but whether they got close to reaching an agreement is another story.
“I don’t know if I would call it a near settlement,” she said. “I don’t know if it got near to ever being accepted but sort of the conversation was perhaps a one-game suspension and then maybe a three or four-game fine, three or four-game check fine, but one of the requests from the union side was that the record be sealed of the appeal and that was interpreted by people who were privy to the conversations as the Brady representatives being concerned about the appearance of the cellphone, the destroyed cellphone.”
Reports came out Tuesday that Brady had destroyed his cellphone prior to talking with Ted Wells, though the quarterback defended his actions Wednesday morning on Facebook. Regardless of the reasoning, Battista said the league certainly will bring the issue up in federal court.
“The union is going to argue about the procedure and that it was flawed and that there’s no precedence for it,” she said. “Obviously the league is going to raise the issue of they don’t believe that the Patriots and Brady cooperated fully with the investigation … because he destroyed a piece of evidence that they has asked for, so there’s no question it’s going to come up. I don’t pretend to get into the mind of a federal judge and how they would look upon that, but that’s something that inevitably is going to come up.”
Battista also stressed that while there is no smoking gun right now pointing to Brady, the NFL doesn’t need one, though the cellphone doesn’t help.
“That’s not the standard of proof that they need, and that’s in the bylaws,” she said. “There’s no smoking gun. There is not going to be a smoking gun ever. It’s just things sort of point to him somehow knowing what was going on, what the two guys were doing to the football and certainly destroying the cellphone looks bad. If nothing else, it just is a bad look.”
One way Brady and the Patriots could go is filing for an injunction, but Battista said that could be relatively risky considering what goes into getting an injunction and how little control the team would have over it.
“The key to an injunction, I’m told by people who know a lot more about this than I ever do, is that you have to prove that you have a pretty good chance of winning the case in court,” she said. “The high bar that they have to reach to get the injunction, I’m not sure, if you’re a Patriots fan, that you necessarily want him to get the injunction, here’s why. You lose control of the calendar a little bit. Now his lawyers will either try to speed this up and get it settled all before the season, or they will try to slow play it and let it extend into the offseason. That’s not entirely in their control though, and so if they don’t have control of the calendar, they run the risk that this whole thing comes up in the middle of the season.
“If the rule goes against him, and any of that suspension is upheld, he would have to serve it whenever that would be and that could conceivably be in the middle of January, which is obviously much worse than serving it in September, from a Patriots perspective. So this is a tricky decision that they have. If they’re going to get the injunction that allows them to play in September, they’ve got to be really, really sure that this is not going to get into court and be settled at some point during the season.”
The NFL has already filed Brady’s case in the New York courts, but the NFLPA doesn’t necessarily want it there. Battista said that while New York is generally more favorable to the league, a place like Minnesota with judge David Doty, who often rules favor of the union, is preferable for Brady.
“It’s all legal maneuvering, which court is this going to be in, and this is just the beginning, because you still don’t know the most important question is, is he going to try to get an injunction to play those first four games,” she said. “Will he be successful getting an injunction, and frankly, if you’re a Patriots fan, do you even want him to get an injunction or do you just want him to serve the four games now so that you don’t run the risk that he has to serve them in December or January.”