The Brady “appeal” of the deflategate discipline really isn’t an appeal at all. In reality, it’s a motion for reconsideration back to Commissioner Goodell who has already approved or authorized the discipline that was suggested by NFL Executive President Troy Vincent.

And as you might guess, the likelihood of a judge reversing himself or herself in reconsideration is slim. As one judge said to me as he began a hearing on a motion for reconsideration: “So Mr. Tate, you’re here to tell me why I’m wrong, isn’t that right?” That judge did reverse himself but it was on a clear legal issue. The deflategate discipline is discretionary.

The NFL, Mr. Vincent and Mr. Goodell would be better to have the courage of their findings and have the appeal heard by an independent person, but in that circumstance they would need to agree to someone who is truly independent.

Messrs. Vincent and Goodell had the whole range of disciplines available to levy. The amount of the monetary fine was entirely flexible and discretionary. Whether to deny draft choices, and which one or ones, was entirely flexible and discretionary. Whether to suspend Brady and from what was entirely flexible and discretionary.

I doubt there would have been an appeal of monetary fines and draft pick penalties. A Brady four game suspension was likely to draw an appeal. Would a one or two game suspension have caused an appeal, perhaps, perhaps not? The NFL also might have been able to reach a mediated discipline agreement with a guarantee of no appeal by Brady.

Commissioner Goodell and the NFL have possibly subjected themselves to unnecessary risk and criticism.

At the current procedural posture, if on the supposed “appeal” Commissioner Goodell keeps the current discipline in place he is only confirming his own decision and isn’t independent.

If on appeal Commissioner Goodell reduces the severity of the discipline he essentially overrules himself and you could ask why he did not make that decision originally if he had previously understood and evaluated the Wells Report and Troy Vincent’s recommendations. Mr. Goodell also weakens Mr. Vincent or pulls the rug out from under him if he now publicly disagrees with and overrule Mr. Vincent’s recommendations.

The NFL and Commissioner Goodell are beginning to run the risk of looking biased, overbearing and unfair. Of course they might ultimately prevail and it is possible that the NFL and Mr. Goodell might be able to further damage or embarrass the Patriots and Brady. But it’s not good if this starts to look like imposing personal will and power.

Commissioner Goodell can still avoid further risk by referring the matter to a truly independent person to determine the appeal. If the discipline is then reduced on appeal Commissioner Goodell at least looks like he took the high road and the most independent and unbiased route.

More to follow.

Dave Tate, Esq. (San Francisco / California)