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Legally Speaking: ‘Deflategate’ judge holding steady to settlement course

(AP Photo)

Who is going to back down? That appears to be the question that both NFL fans and nonfans are asking when it comes to “Deflategate.”

Co-workers and friends are betting pitchers of beers and chances are you can probably venture into any sports book in Vegas and slap down a Benjamin on the outcome.  Every fan has an opinion as to what New England Patriots quarterback Tom Brady did or didn’t do and most are not too shy to share it.

However, the only opinion that seems to matter right now is that of Judge Berman.  But he is doing everything he can to not have to share his opinion.

Prior to the parties (NFL, Commissioner Roger Goodell, the NFLPA and Brady) walking into his courtroom on Wednesday, Judge Richard M. Berman had ordered them to participate in meaningful settlement discussions.

This is a typical encouragement handed down by judges but what was interesting in this case was how fast that encouragement was given.  Judges often encourage settlement — it cuts down on court and attorney costs and clears the court docket —  but it usually comes a little further down the lawsuit road.

This tells me Berman recognizes the urgency of the matter since NFL camps have officially started.

With only four weeks left before the Patriots’ first regular-season game, time is of the essence.  Brady and the NFLPA want Berman to either rule against the NFL or put Brady’s suspension on hold so he can run onto the field Sept. 10 as his team’s starting quarterback.

The NFL wants the judge to uphold Goodell’s decision but it doesn’t really matter when Berman does that since Brady is suspended.  It is Brady and the NFLPA who are most concerned about the time.

It is clear Berman is pushing the parties to settle.  He doesn’t want to make the call, he doesn’t want to be the referee.  This can be seen by the fact he asked several pointed and obvious questions in court.

By grilling both sides, in front of each other, he is attempting to point out both the strengths and weaknesses of each.

This is a typical and effective tactic used by judges and mediators in settlement conferences and mediations.  It forces each side to actually hear and contemplate the good and the bad.

After the frank exchange, Berman further indicated his desire for the parties settle when he ordered them to immediately engage in further settlement talks-with HIM, which they did.

And if that is not enough to convince you Berman wants to hand off this decision, then the fact he ordered the parties back into his courtroom for further settlement discussions on Aug. 19 if there is no settlement beforehand should clinch it.

I have not seen or heard, of a federal judge pushing this hard for a settlement this early in the game.  If he succeeds, and the parties settle, Berman might want to seriously consider coming off the bench and becoming a mediator.

It takes skill to take all the egos, testosterone, money and reputations in this case, strip it away and bring home the win.

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