Fielkow's Law: FAQ on Tom Brady's Suspension and Appeal

Unless you've been living under a rock, you've probably heard about the hot water in which Patriots quarterback Tom Brady finds himself. If you're anything like me, you're also plenty sick of the story by now. Yet thanks to some recent maneuvering by the NFL and NFL Players Association, the Deflategate saga may remain front and center for some time still, with its fantasy impact on one of football's most recognizable stars dangling in the wind.

I won't belabor the specifics of the situation here. If you want to find out more of the facts regarding the situation, I'm certain a quick Google search will provide more reading materials than you could possibly imagine. Nonetheless, here are the main bullet points:

January 18: Brady completes 23-of-35 passes for 226 yards and three touchdowns in a 45-7 beat down of the Indianapolis Colts in the AFC Championship game. Shortly thereafter, reports surface that the NFL was looking into the Patriots' use of "deflated footballs" in that game. Per the NFL rulebook, game balls must be inflated to between 12.5-13.5 pounds per square inch of air. Each team must provide 12 primary balls for testing prior to the game.

January 20: The NFL finds that all 11 footballs used by the Patriots were underinflated.

January 23: The NFL announces Ted Wells had been appointed to independently investigate the case.

February 1: The Patriots defeat the Seattle Seahawks, 28-24, in Super Bowl XLIX, a game for the ages. Brady wins his third Super Bowl MVP award.

May 6: The Wells Report is released. Wells finds that "it is more probable than not that Jim McNally (the Officials Locker Room attendant for the Patriots) and John Jastremski (an equipment assistant for the Patriots) participated in a deliberate effort to release air from Patriots game balls after the balls were examined by the referee." The report also finds that it is "more probable than not that Tom Brady was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls." The Report does, however, acquit Patriots' ownership, head coach Bill Belichick, and other coaches of wrongdoing or knowledge of wrongdoing.

May 11: The NFL announces that Brady has been suspended without pay for four games for violating the NFL policy on Integrity of the Game and Enforcement of Competitive Rules. According to the NFL's statement, Commissioner Roger Goodell authorized the discipline that was imposed by NFL Executive Vice President Troy Vincent, who made it clear that Brady's lack of cooperation with the league's investigation – by "refusing to produce any relevant electronic evidence (emails, texts, etc.)" and by providing testimony that the Wells Report concluded was "not plausible and contradicted by other evidence" – was a factor in the punishment.

May 14: The NFLPA, on Brady's behalf, filed an appeal of his four-game suspension. According to the NFLPA, Vincent did not have the authority to impose discipline on Brady, as the CBA only grants the commissioner that power; the discipline was not fair and consistent; and the Wells Report, the sole basis for the suspension, was "legally inadequate" because it contained insufficient evidence to find Brady committed any violation of NFL rules. Further, requested the NFLPA, "given the NFL's inconsistency and arbitrary decisions in disciplinary matters, it is only fair that a neutral arbitrator hear this appeal."

May 15: Commissioner Goodell elected to preside over Brady's appeal, rejecting the NFLPA's request that an independent arbitrator hear the case.

June 2: After considering a May 19 motion by the NFLPA seeking his recusal, commissioner Goodell issued a letter reaffirming his right to act as sole arbiter in the Brady appeal.

Brady's appeal is currently set to be heard by Goodell on June 23. In the meantime, all we can do is wait, so let's take some questions.

Q: Why was Brady suspended?

A: "More probable than not." That's the key. Wells' use of this language was with specific purpose, as "more probable than not" equates to a "preponderance of the evidence," the standard that applies in most civil lawsuits. According to Wells – and without going into the specific findings of the Wells Report – the evidence he collected makes it more likely than not that Patriots' personnel "were involved in a deliberate effort to circumvent the rules" and that Brady "was at least generally aware of the inappropriate activities."

Though the use of the term "more probable than not" gives Patriots' backers something to cling to in arguing that there was no hard evidence of cheating, when it comes to issues of this nature, there often isn't direct evidence. It's typically circumstantial; hence, the preponderance of evidence standard used in most courts. Wells' conclusion that most of the evidence pointed to a deliberate effort to circumvent the rules was enough.

Arguably more important is Brady's alleged failure to cooperate with Wells' investigation. The NFL made this very clear in their May 11 official statement. In cases where accused players or teams have not cooperated with the league, the NFL typically imposed harsher punishment, even in situations where the league could not conclude a violation of league policy. In this case, Brady's refusal to produce his emails or texts and implausible testimony, coupled with Wells' findings, gave Goodell the green light to impose discipline.

Q: Why is Goodell hearing the appeal?

A: Because the Collective Bargaining Agreement (CBA) negotiated by the NFL and NFLPA grants him the power to do so. In the very first CBA in 1968, the NFLPA agreed to allow the Commissioner to impose discipline and to designate the hearing officer, including himself, to handle any appeal matters related to conduct detrimental to the integrity of, and public confidence in, the game of professional football. This has been at issue for years now, but in the most recent CBA negotiated in 2011, the players once again empowered Goodell to serve as decisionmaker in such matters.

Whether it makes sense for Goodell to preside over the appeal is another matter. Because he has the authority to appoint an arbitrator, he could turn to Harold Henderson, who is a former NFL executive generally viewed as favoring the commissioner and the owners. He could also tab someone like former NFL commissioner Paul Tagliabue, who stepped in during the Saints' Bountygate appeal. Or, as the NFLPA requested in its May 14 appeal letter, he could name a completely independent arbitrator. This would probably have been his best choice. As the NFLPA challenged, "given the NFL's inconsistency and arbitrary decisions in disciplinary matters, it is only fair that a neutral arbitrator hear this appeal. If Ted Wells and the NFL believe, as their public comments stated, that the evidence in their report is 'direct' and 'inculpatory,' then they should be confident enough to present their case before someone who is truly independent."

Yet, Goodell will hear Brady's appeal. He may have been reluctant to hand over the reins because the last time Goodell named a neutral arbitrator, for Ray Rice's appeal, the NFL suffered a humiliating defeat. Notwithstanding his reasoning, it's within his authority. His decision, though, could also strengthen the chance that Brady sues the NFL, as Adrian Peterson successful did, based on an arbitrator's alleged impartiality. While Brady will still likely be forced to serve his suspension regardless of whether he brings a lawsuit, if he does goes that route, this matter isn't going away.

Q: Could Brady be suspended for more than four games?

A: No. It's certainly possible that Brady's appeal could have some detrimental effect on his public appearance, but he faces a maximum of four games on the sidelines. For example, in the arbitration process, Brady could be compelled to turn over the material he didn't want the NFL to see, such as his text messages and emails to Patriots' personnel. With this information, which was withheld from Wells during his investigation, the case against Brady could actually be strengthened. Yet, whether the arbitrator is Goodell, Henderson, or an independent person, the arbitrator cannot increase the suspension.

Q: Will Brady have his suspension reduced or eliminated entirely?

A: In my estimate, probably not. Reasonable minds can certainly disagree. For example, ESPN legal analyst Lester Munson concludes that there is no chance Brady will have his suspension reduced because the evidence gathered by Wells is clear and convincing. Meanwhile, others claim that the evidence used to support Wells' conclusion may not have risen to the level necessary to punish Brady to such an extent, and even if the evidence is sufficient, the punishment may not fit the crime.

However, the most likely outcome is that Goodell will uphold the four-game suspension as reasonable and justified, or, if he's in a mood to compromise, reduce it to three games. Though a slight reduction in the suspension is a possibility, I think it's extremely unlikely that Goodell will eliminate it entirely. As Wells stated in his report, it was "more probable than not" that Brady was involved in an effort to underinflate footballs to give him a competitive edge, and adopting "a contrary conclusion requires the acceptance of an implausible number of communications and events as benign coincidences." Even if Brady is able to persuasively argue on appeal that the suspension is not warranted because it is only a minor violation or the evidence is insufficient, Brady's alleged failure to cooperate with the investigation is an important factor that weighs heavily against him.

Q: How does the suspension affect the fantasy value of Patriots quarterbacks in 2015?

A: Obviously, if the suspension is lifted completely, Brady can be restored to his rightful perch near the top of the quarterback ranks, after finishing 2014 with a flourish following a slow start. If Brady's suspension is upheld, or only minimally reduced, things get trickier.

For fantasy owners, those first few weeks can be critical. A few bad weeks can put your team seriously behind the eight ball. With the Patriots on bye in Week 4, owners could be without Brady's services until possibly Week 6! Drafting Brady will also require drafting a backup quarterback, something I rarely advise in most leagues. This is particularly true early in the season, when roster spots are most valuable, often filled with high-upside guys drafted in the late rounds or hot free agents in an attempt to find the season's breakout star. Further, quarterback is a deep position, and the actual fantasy value between the top ten players at the position is relatively small. Brady may reach worthwhile sleeper value if his draft stock plummets, but with so many other solid options, I'm likely avoiding the hassle of owning Brady if his suspension is upheld.

Of course, if Brady is suspended, the starting job most likely falls to Patriots backup Jimmy Garoppolo. Right off the bat, if Brady's four-game suspension is upheld, I'm not recommending owning both the Patriots' signal callers, as owners will likely need to add a third quarterback to the mix in order to navigate New England's Week 4 bye. (Keep in mind that it's a four-game suspension, not a four-week suspension). That's a lot of roster space being tied up so early in the season. In a vacuum, however, Garoppolo does have some Matt Cassel-like intrigue. While untested in the NFL, it's proven unwise to doubt Patriots offensive coordinator and quarterback whisperer Josh McDaniels. More importantly, Garoppolo has some upside based solely on the Patriots' first four opponents (in order), Pittsburgh, Buffalo, Jacksonville, and Dallas. Three of those teams, with the Bills being the lone exception, finished in the bottom 10 in the NFL in passing yards allowed in 2014. It's hard to recommend making Garoppolo a key piece to your championship aspirations, but for owners speculating at the end of the draft, you could do worse.