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Myers: Brady's DeflateGate fate not so appealing

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Tom Brady takes hits from judges hearing NFL’s appeal of Deflategate case — with one saying Brady’s explanation for destroying cell phone ‘makes no sense’ — so QB may end up serving ban.Maddie Meyer/Getty Images

Tom Brady takes hits from judges hearing NFL’s appeal of Deflategate case — with one saying Brady’s explanation for destroying cell phone ‘makes no sense’ — so QB may end up serving ban.

Deflategate lives on — will it ever really go away? — and this time three judges could take down Tom Brady harder than Von Miller and the Broncos defense did in the AFC Championship Game.

The honorable Chief Judge Robert Katzmann, Barrington Parker, Jr., and Denny Chin of the Second Circuit Court of Appeals relentlessly hammered Brady’s superstar lawyer Jeffrey Kessler on Thursday in the 17th-floor courtroom at 40 Foley Square during the 60-minute court session of the NFL’s appeal of Brady’s successful appeal of his four-game suspension.

A sample:

Chin on Brady deflating footballs: “Evidence of ball tampering is compelling if not overwhelming. How do we second-guess the four-game suspension?”

Parker on Brady destroying his cell phone: “With all due respect to Mr. Brady, his explanation made no sense whatsoever.”

Katzmann on Brady being suspended and not just fined: “Your challenge is to find where in the CBA does it say if you tamper with game balls and then obstruct, where does it say the only punishment is a fine?”

The end result if Brady loses: His Deflategate suspension would be reinstated — until Roger Goodell changes his mind — forcing him to sit out the first four games of the 2016 season.

If the Jets win the AFC East this season, the road to glory will have started in downtown Manhattan. The judges won’t rule for a couple of months, but the tone of their questions during the oral arguments of NFL attorney Paul Clement and then Kessler was overwhelmingly much tougher on Kessler.

What does it mean?

If the NFL wins, the suspension is put back in place by the court. Now whether Goodell will be satisfied with having his collective bargaining agreement powers confirmed or whether he goes for the jugular and suspends Brady is a question Goodell didn’t want to answer when I asked him at the Super Bowl.

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 September, U.S. District Court Judge Richard Berman ruled for Brady. The NFL appealed right away. Brady played the 2015 season — 36 TDs, seven INTs, 4,770 yards — with hate in his heart, as if every defensive player was either Goodell or Ted Wells.

In the give-and-take Thursday between the judges and Kessler, it became clear they were questioning Brady’s integrity and truthfulness in his explanation of why he destroyed his cell phone, and they generally had Kessler squirming on just about every issue.

“I think Brady is staring down the barrel of a 2-1 defeat,” said Daniel Wallach, a Florida attorney and sports law expert who was in court Thursday and has been paying close attention to the case. “It was not a good day for Brady.”

Back page of the New York Daily News for January 23, 2015.New York Daily News

Back page of the New York Daily News for January 23, 2015.

Chin immediately went after Kessler just as he was attempting to begin his argument. Clement was up first and the judges at least allowed him to get in a few sentences before the inquisition started, with the questioning centered on whether footballs that have been deflated really have an impact on the game and why Goodell deemed the punishment for deflating footballs to be like that of failing a steroids test rather than the fine that comes with being caught using stickum.

Parker definitely seemed pro-NFL. Katzmann seemed to lean a bit toward Brady, but not by much.

Chin, who by the way is the judge who sentenced Bernie Madoff to 150 years in prison, leaned toward the NFL.

It’s often hard to read what the judges are thinking, so it can be dangerous to predict how they will vote.

But if two of the three side with Goodell, then Brady’s suspension is back in business.

“The cell phone issue raised the stakes,” Parker said. “It took it from air in a football to compromising a proceeding that the commissioner convened.”

Kessler at one point was asked if he thought Goodell was out to get Brady and what his motivation would be for trying to take him down. Kessler said Goodell was trying to justify his $3 million investment in the Wells Report when the best it could come up with was that Brady was generally aware of the ball deflation.

Brady was not in court. Neither was Goodell. Bill Belichick was not around either, but certainly he is paying close attention. It wasn’t until one week before New England’s season opener that Brady’s four-game suspension to start the season was overturned. Belichick spent time during training camp preparing Jimmy Garoppolo to start.

Well, he’s on notice now to get Garoppolo up in the bullpen and ditch any thought of attempting to trade him to regain the first-round pick Goodell stripped from the Patriots as part of the Deflategate punishment.

Katzmann said “this is an expeditious court.” But it’s the NFL offseason and there is no sense of urgency to make a quick decision as Berman did last summer. That means the uncertainty about Brady’s availability could last until late May or early June.

Of course, by now, this story has run its course. If Brady wins, most likely Deflategate is over. If he loses, the case can go back to Berman or Brady can appeal to a full panel of judges of the Second Circuit, where it is not a given that the case will be taken. If they won’t hear it, a request could be made to the Supreme Court, where it’s a long shot to be heard.

Just the thought of Deflategate in the Supreme Court is mind-numbing.

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