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Examining Tom Brady and the Strategy of the ‘Stay’

The infamous Friday afternoon news dump looms and the start of training camps around the NFL is just days away yet ESPN reported that there is “zero chance” the league will make a ruling on Tom Brady’s pending four-game suspension for his alleged role in the Deflategate scandal.

It’s been a month since Roger Goodell heard Brady’s side of the story on Park Avenue but things are still stuck in neutral for good reason, neither side is prepared to budge off their position when it comes to Brady missing playing time.

Two different league sources confirmed to FanRagSports.com that the NFL is indeed willing to come down from the original four-game penalty, but Brady and the NFLPA aren’t moving off their position that the star shouldn’t have to sit at all.

ProFootballTalk reported Thursday Brady’s camp discussed a potential settlement with Goodell and Co. that would result in a fine and avert the end-game of federal court, a proposal that was met with “silence” by the NFL side.

30 APR 2015: NFL Commissioner Roger Goodell during the first round during round 1 of the 2015 NFL Draft at Auditorium Theatre in Chicago, IL.

From the league’s perspective it’s almost impossible to drop the four-game punishment down to zero, especially after it spent upward of $5 million for a 243-page report, albeit one littered with faulty logic.

On the other hand, the reality for Brady is that he is on thin ice legally because courts are generally loathe to open a Pandora’s Box by overturning any collectively bargained agreement between labor and management even if one side is clearly in the wrong.

A precedent like that would open the floodgates in hundreds of other industries creating unintended consequences that would reverberate throughout society.

It’s been a contentious calendar year between the NFLPA and the league and some have spun recent legal wins by the union as something Brady should consider, assuming the Pats’ All-Pro would enjoy similar success as personal-conduct violators like Ray Rice, Adrian Peterson and Greg Hardy.

But that’s misunderstanding why the NFL was on the wrong side of the fence on those types of issues. In Rice’s case, neutral arbiter Barbara Jones overturned things because Goodell tried to punish the ex-Ravens pariah twice, with the second attempt only coming after the casual public raised it’s back at the commissioner’s laughable first swing of the bat.

Peterson won in court and Hardy will win if he decides to take it that far (a result the league is trying to avoid by downgrading his suspension from 10 games to four) because they were punished under Goodell’s unilaterally-implemented “new” domestic-violence policy, despite committing their respective atrocities under the old collectively-bargained agreement.

28 December 2014: New England Patriots quarterback Tom Brady (12) during a NFL game between the Buffalo Bills and New England Patriots at Gillette Stadium in Foxboro, MA.

In Brady’s case you call Goodell’s punishment heavy-handed (and perhaps rightfully so) but the players gave the commish the right to decide penalties in these kinds of instances. Meanwhile, there is also no previous precedent on the books for this kind of offense unless the NFLPA has some kind of smoking gun which proves the league knew about this type of behavior from other players in the past and never acted.

So Brady’s real strategy here is playing politician in attempting to kick the can down the road by getting a stay (the act of temporarily stopping the punishment through the order of the court) that will allow him to play in 2015 as the legal process runs its course.

It’s a similar tact the offenders in the StarCaps case took back in ’08 and one of those, former Minnesota Vikings nose tackle Pat Williams, actually retired before having to serve his suspension.

Remember, though, the NFL eventually won that case which arose when several players tested positive for bumetanide, a banned diuretic that had been added to StarCaps, a weight-loss supplement, but was not listed on the ingredients.

The league was aware that the supplement contained bumetanide but did not alert the players, and the court abhorred the league’s behavior, essentially describing its action or lack thereof as entrapment and a public relations-fueled game of gotcha.

“There is no doubt that it would have been preferable for the NFL to communicate with players specifically about the presence of bumetanide in StarCaps,” U.S. district judge Paul Magnuson wrote in his judgment of the StarCaps case. “The NFL’s failure to do so is baffling, but it is not a breach of the NFL’s duties to its players.”

Translation — It was a breach of common decency but one that also foreshadows the eventual denouncement of Brady’s case.

Like it or not, the players have already collectively bargained away many rights the rest of us enjoy.

And for Brady, this is now about staving off the inevitable.

You can reach JF McMullen at jmcmullen@phanaticmag.com or on Twitter @jfmcmullen — Also catch John this week on YAHOO! Sports Radio, FOX Sports Radio, ESPN, Atlantic City, YSR Indianapolis, ESPN Lexington, Omaha’s The Zone, Mobile’s WNSP, Baltimore’s 105.7 The Fan, 98.5 The Sports Hub in Boston and ESPN Southwest Florida.





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