Will Brady's all-star lawyer help him beat NFL rap?

In the expected appeal of his four-game suspension over deflate-gate, Tom Brady's only teammate on the field of battle will be his lawyer. In choosing Jeffrey Kessler, Brady wisely chose an all-star with a winning record against his adversary, the NFL. But how much will it matter? A great deal, but probably not as much as who ultimately decides this matter.

Attorney Jeffrey L. Kessler
Jeff Roberson | AP
Attorney Jeffrey L. Kessler

As has been widely reported, Kessler has helped his clients win important victories against the NFL. As Baltimore Ravens running back Ray Rice's lawyer, Kessler persuaded retired federal judge Barbara Jones, who heard that appeal, that Commissioner Roger Goodell had abused his discretion in giving Rice an indefinite suspension after first suspending him for two days. Judge Jones found that Rice had not misled the Commissioner in his initial account of punching his then-fiancee and therefore the commissioner had acted arbitrarily in upping the initial punishment after a public furor.

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Earlier this year, Kessler won a victory for Minnesota Vikings running back Adrian Peterson, convincing U.S. District Judge David Doty to overturn an arbitrator's ruling upholding Peterson's suspension for "at least the remainder of the 2014 season." Judge Doty relied in part on Judge Jones's conclusion that the NFL's new domestic violence policy could not be applied retroactively to Peterson. Kessler also has prevailed against the NFL in other important cases, reaching back decades.

But Kessler doesn't always win. Almost no lawyer who handles any volume of high-stakes matters always wins. Kessler's genius has been in identifying the strongest legal arguments and joining those arguments to the available facts to craft a winning strategy. Lawyers, however, can't make up facts and can't make up law. To paraphrase former Defense Secretary Donald Rumsfeld, a lawyer makes the best of the facts and law as they are, not as he or she wishes they were.

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Who hears this appeal will matter at least as much as who argues it. Commissioner Goodell has the right to hear Brady's appeal himself rather than designating someone else, such as a retired judge, to hear it. It's a safe bet that the commissioner would uphold punishment he already authorized. Brady has a far better shot if Goodell, as matter of fairness, steps aside. It would be somewhat ironic if Goodell did not decline to hear the appeal. Brady, after all, is being punished in substantial part for knowledge of conduct beyond the bounds of fair play.

There is no guarantee that an impartial judge will side with Brady. Still, in ruling in Rice's favor, Judge Jones noted that the NFL Collective Bargaining Agreement requires that a hearing officer generally must give the commissioner's disciplinary decisions the benefit of the doubt. But, the judge added, that does not mean the commissioner is entitled to "a rubber stamp of approval." That's the standard that will be applied in Brady's appeal and that's essentially the same standard that will be applied to the decision-maker's ruling if the decision on this appeal is challenged in court.

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Make no mistake. It's halftime and Brady is down a couple of touchdowns. If the game ends now, he loses. And he's virtually alone on the field, his only teammate an estimable lawyer. No Gronk, no Amendola. Given the odds, if Brady prevails in this appeal it will have to rank among the greatest comebacks of his storied career.

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.