Deflategate: Brady appeal won't be easy

Tom Brady reportedly will appeal his four-game suspension for his incomplete cooperation in the "Deflategate" investigation and his more-probable-than-not general knowledge of the inappropriate activities of two Patriots staffers in the scheme to deflate balls below the prescribed minimum in the 2015 AFC Championship game. That's a quarter of the season.

What happens now? What should happen now?

New England Patriots Quarterback Tom Brady talks to the media during a press conference to address the under inflation of footballs used in the AFC championship game at Gillette Stadium on January 22, 2015 in Foxboro, Massachusetts.
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New England Patriots Quarterback Tom Brady talks to the media during a press conference to address the under inflation of footballs used in the AFC championship game at Gillette Stadium on January 22, 2015 in Foxboro, Massachusetts.

Before this week is over, Brady will exercise his right under the NFL collective bargaining agreement to appeal the ruling that he engaged in "conduct detrimental to the integrity of, or public confidence in, the game of professional football." Within 10 days after the NFL receives Brady's appeal, a hearing will be held, either before Commissioner Roger Goodell or his designee. Those dates may be extended, but it's hard to see that happening here.

Brady faces a daunting challenge in this appeal, particularly if the commissioner exercises his prerogative to hear the appeal himself. Since failure to cooperate was an independent basis for the discipline, Brady will have to explain why he did not turn over requested electronic evidence and why he offered testimony investigators found implausible.

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He also probably will have to share more than he has. How much more will Brady disclose beyond what he gave the investigators? Will anything more that he gives be enough to persuade whoever hears the appeal that a lesser punishment or, improbably, no punishment is warranted? It's tough to see how Brady gets a break based on arguments about fairness alone without providing additional factual evidence from which a different conclusion may be reached.

One key consideration for the hearing officer will be how Brady's punishment compares to the punishment imposed for previous instances of player misconduct. Many have pointed out that the four-game suspension is double what Ray Rice ultimately got for a horrific episode of domestic violence.

How do you weigh probable general knowledge of a rules violation against an undisputed intentional act of off-field physical abuse? In the broader scheme of ethics, having probable general knowledge of the violation of a game rule is obviously a far lesser transgression than punching a woman in the face. But this is the NFL. The league may decide to send a message that Brady's four-game suspension is relatively justified because what he probably, generally knew about the underlying cheating, and his limited cooperation in the investigation, touched on the integrity of the enterprise. OK, but what kind of message will that send to the world, to players, to kids?

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If Brady is more forthcoming than he was in the investigation, and if whatever else he provides does not implicate him further in the alleged misconduct than what was already uncovered, the NFL will have a solid reason to reduce this lengthy suspension — reduce, but not vacate. It seems clear that the NFL is intent on punishing Brady in this matter in some way, even though there is no evidence of his direct involvement in the deflation scheme and even though it is obscure whether he acquired any probable general knowledge of the inappropriate activities before or after the scheme was hatched and executed.

The degree of punishment matters, and not primarily because this case involves a player and a team that arouse unique levels of passion. It matters because this case will set a precedent that will be applied the next time something like this happens with some other player and some other team. That's how industrial justice works. As the commissioner testified in the Ray Rice appeal hearing: "I do accept that I have to be consistent with consistent circumstances, and so if there are consistent circumstances, I think that's about fairness, and fairness would be you should be as consistent as possible in your discipline."

What principle will emerge from the ultimate outcome of Deflategate that the commissioner will be bound to apply consistently from now on? Attention must be paid.

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Commentary by Dan Eaton, a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is a professor at the San Diego State University College of Business Administration where he teaches classes in business ethics and employment law. Follow him on Twitter @DanEatonlaw.