The Deflategate saga may not be over after all, and the threat of a four-game suspension for Tom Brady may be back in play.

A three-judge panel heard oral arguments Thursday in New York from attorneys representing Brady and the NFL in an appeals case that will determine whether the Patriots’ star quarterback will have his punishment reinstated.

Deflategate began Jan. 18, 2015, when the Colts accused the Patriots of using purposely underinflated footballs in the first half of the AFC championship game.

Three 2nd Circuit U.S. Court of Appeals judges grilled NFL attorney Paul Clement and NFL Players Association attorney Jeffrey Kessler – who is representing Brady – about the case. Particularly intense questioning of Kessler led several courtroom observers to suggest that Commissioner Roger Goodell’s suspension of Brady could be reinstated.

“I think Brady is staring at a 2-1 defeat,” said attorney Daniel L. Wallach, who attended the hearing. “It was not a good day for him. We’re dealing with labor arbitration, where courts are loath to interfere with the determination of arbitrators.”

The appeals court judges –Denny Chin, Barrington Parker and Robert Katzmann – focused on Brady’s destruction of his cellphone just prior to his meeting with NFL investigators last March. Parker said to Kessler that “anybody within 100 yards of this proceeding knew that would raise the stakes.”


The judges also seemed to agree that the facts of the case indicated Brady knew of the plan to have footballs purposely deflated before the game. Chin said the evidence of tampering with the footballs was “compelling, if not overwhelming.”

The NFL’s exhaustive investigation last year found it was “more probable than not” that the balls were deflated below the 12.5 PSI minimum and that Brady was “generally aware” of the situation.

The judges also asked several pointed questions of Clement, including why Goodell decided to suspend Brady for as long as a player found to have used steroids. Clement said Goodell chose the penalty because purposely deflating footballs amounted to an effort to gain a competitive advantage.

Attorney Gabe Feldman, director of the Tulane University Sports Law Program, said it is risky to predict the outcome of the case, but that the judges’ questioning of Kessler suggested Berman’s ruling could be overturned.

“I was surprised how much time the judges focused on the merits of the case. They seemed to be drawing their own conclusions,” Feldman said. “It’s still an open question about whether they’ll conclude that Judge Berman was correct, that the commissioner’s power does have limits and that the hearing was fundamentally flawed.

“But all three judges asked questions that certainly suggested the evidence was sufficient to support Commissioner Goodell’s discipline. The big caveat is that it’s dangerous to read too much into judges’ questioning.”

Brady was suspended last May by Goodell, who upheld the sanction in July following an appeal. Clement told the judges Thursday that Goodell had taken Brady’s destruction of his phone into account because it “obstructed” the NFL’s investigation. Brady then sent the matter to U.S. District Court in New York, and Judge Richard Berman overturned the suspension days before the Patriots’ regular-season opener against the Steelers. Brady played the entire season, leading the Patriots to the AFC championship game, which they lost to the eventual Super Bowl champion Broncos.

Brady and Goodell did not attend Thursday’s hearing.

A ruling isn’t expected for several weeks. If Brady loses, he can appeal to the entire 2nd Circuit Court of Appeals – called “en banc” – but such appeals rarely are heard. If the NFL loses, it can appeal to the U.S. Supreme Court, but most legal experts agree the court wouldn’t consider Brady’s case important enough to hear.

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