You may recall that, when a NY judge overturned the Tom Brady deflategate suspension prior to the 2015 season, the National Football League vowed to appeal the decision.
Brady was accused of playing a role in deflating footballs in violation of league rules for the 2015 AFC Championship Game against the Indianapolis Colts, a game the New England Patriots won 45-7. But Kessler was cut off.
That explanation did not sit well with Judge Barrington Parker. The judges quizzed Kessler about Brady's destruction of his cellphone, with Parker saying "the cellphone issue raised the stakes... from air in a football to compromising the integrity of the proceeding". "No matter which way the court rules, the certain next step will be a petition to re-hear en banc by the losing party; that is a mechanism available in the federal appeals court to ask the full court, all of the active judges on the court - 10 or more -to re-hear the case". This rings particularly true when considering that Berman vacated Brady's four-game suspension on those grounds: inadequate notice, denial to examine one of the co-investigators - National Football League counsel Jeff Pash - during the initial appeal hearing, and denial to equally access investigative files.
"Your challenge is to show where in the CBA that if you tamper with game balls and then obstruct an investigation, you will only get a fine", he said to Kessler.
"It would be an very bad shame if this issue has to hang over the league for another season", Clement said.
But NFLPA attorney Jeffrey Kessler faced a much more intense line of questioning than his counterpart, NFL attorney Paul Clement, and judges Parker and Chin expressed significant doubts with Kessler's argument. The law is malleable, and good judges can find a way through the weeds to support whatever the judge wants to do.
After Goodell rejected Brady's appeal of the four-game suspension, the league went to federal court to get a judge's approval of its handling of the case.
William Hill Scottish Cup quarter-final results
Rangers will be aiming to be the first side from a lower division to win the Scottish Cup since East Fife in 1938. The quality dipped a little in the last 10 minutes of the first half.
And Parker suggested that the Commissioner could have suspended Brady for the destruction of the cell phone alone.
The legal argument is whether Goodell was within his CBA rights to suspend Brady for four games and whether the process was fair to the Patriots QB.
In short, the judges don't seem to be buying Kessler's argument.
Due to the common nature of appeal hearings, the final decision by the three appellate judges is still months away.
The judges could opt to send the case back to U.S. Judge Richard Berman, or Brady could try to have an unfavorable ruling heard by a larger appeals panel (though such wider appeals are granted in less than 2 percent of all cases) and eventually take it to the Supreme Court.
Katzmann had the most questions for Clement's side, probing Clement as to why the penalty for ball deflation is more harsh than a penalty for using Stickum on a receiver's gloves, or to point out the proof that Brady induced team employees John Jastremski and Jim McNally with gifts.
Initial impressions: this isn't Judge Berman. This is about the rights we negotiated in our collective bargaining agreement.