Judge Questions Why Jeff Pash Didn't Testify, If Wells Report Truly Independent

U.S. District Court Judge Richard Berman believes Tom Brady was “prejudiced” in his original arbitration hearing, and he’s probably right.

In nullifying the New England Patriots quarterback’s four-game suspension, Judge Berman showed he clearly had more problems with the NFL’s side of the Deflategate case. Commissioner Roger Goodell’s comparison of performance-enhancing drugs and partially deflated footballs was among the issues, but the NFL withholding witnesses and pertinent documents from Brady also did not sit well with Judge Berman.

The NFL Players Association claimed it was fundamentally unfair the league denied the testimony of NFL executive vice president and general counsel Jeff Pash during arbitration because it publicly declared him as the co-lead investigator in Ted Wells’ Deflategate investigation. Pash also was allowed to review a draft of the Wells Report before it was published.

That denial was enough to add Judge Berman to the list of people who question Wells’ independence in the investigation.

“Denied the opportunity to examine Pash at the arbitral hearing, Brady was prejudiced,” Judge Berman wrote in his decision. “He was foreclosed from exploring, among other things, whether the Pash/Wells Investigation was truly ‘independent,’ and how and why the NFL’s General Counsel came to edit a supposedly independent investigation report.

“Brady was also prejudiced because there was no other witness, apart from Pash, who was ‘as competent to address the substantive core of the claim.’ ”

It’s pretty obvious Judge Berman doesn’t believe Wells’ investigation was independent, and it’s hard to argue with the explanation. That part of the decision is strengthened by the fact Goodell also denied Brady’s team access to witness testimony transcripts that could have helped his case, even though the NFL was able to use them itself.

But the kicker is Judge Berman’s argument that Goodell relied too heavily on the CBA policy disallowing players from having conduct “detrimental to the integrity of, or public confidence in, the game of professional football.”

“Goodell’s reliance on notice of broad CBA “conduct detrimental” policy — as opposed to specific Player Policies regarding equipment violations — to impose discipline upon Brady is legally misplaced,” Judge Berman wrote.

Judge Berman went on to argue Ray Rice and Adrian Peterson’s cases could have been considered conduct “detrimental to the integrity of … the game of professional football,” but they were rightfully disciplined under the domestic violence policy.

“An applicable specific provision within the Player Policies is better calculated to provide notice to a player than a general concept such as ‘conduct detrimental,'” Judge Berman wrote.