Virginia Talk Radio Network’s Sportsline radio personalities, Richard Roth and Dennis Carter, asked Dan Summerlin, President of Woods Rogers, to share his thoughts on Tom Brady and ‘deflategate’.

Q. Rich Roth: We are joined now by Dan Summerlin of Woods Rogers PLC. He practices in Labor and Employment Law. Dan, how are you? We appreciate you taking some time for us once again.

A. Dan Summerlin: Good afternoon gentlemen, thanks for having me on.

Q. Rich Roth: First off Dan, are you a Brady guy?

A. Dan Summerlin: I grew up in Roanoke so I am a Redskins fan.

Q. Rich Roth: Very good to hear! We’ve heard so many different things over the course of the last few days and it played out the way most people expected it to—in which Roger Goodell didn’t overrule himself. He didn’t get rid of the suspension all together…we’ve heard all along that if there were any games or types of suspensions, Tom Brady would pressure it through legal action in the court system and that begins with an injunction. I have a lot of questions, but before we dive into them give us a quick overview of where things are now and how this is going to progress forward a little bit.

A. Dan Summerlin: Right now the NFL has begun their process, which you just talked about and it ended sort of predictably, which is Goodell upholding himself [the suspension] to four games. There’s really nothing else for the NFL to do in terms of deterring that. The only way to reverse this is for the NFLPA (National Football League Players Association) is to take it to the court system. Now what the NFL did was an interesting maneuver; they waited to announce the upholding of the suspension until they had their lawsuit ready to go. They went ahead and filed on the same day to the federal court of New York City hoping to have any judicial hearings heard there as opposed to where the NFLPA is likely to file suit—in Minnesota—because they may have a more favorable ear up there than they would find in New York. The only way for Brady to play now, at this point, is for a court to issue an injunction and that is going to come through one of those two court systems.

Q. Rich Roth: What you said which is interesting to me (and we will get to the injunction in just a second), is that the NFL filed in New York. How does it get determined which court, which jurisdiction will hear this case?

A. Dan Summerlin: Well that’s a great point, and we will see how it plays out, that might be our first clue in how this is going to be resolved. The NFL—obviously wants to stay out of Minnesota’s federal court which is known to be more labor friendly—went ahead and wanted to be the first one to file because sometimes that is a factor. The two courts are going to have to decide who is going to take primary jurisdiction here and with this race to the court house, often times the person who files first has a little bit of a leg up in that. That is why they did it the way they did, so they could say they were the first to file and their court would retain jurisdiction and not have it transferred to Minnesota.

Q. Dennis Carter: Dan, Dennis Carter here. I wanted to ask you, which case gets heard first? Both of them are filed on the same day, one in Minnesota, one in New York. How is this handled as far as who gets first attention?

A. Dan Summerlin: The lawyers will file a bunch of motions at this point trying to get their courts—the NFL will be filing in New York City, the NFLPA will be up in Minnesota, trying to get that judge to transfer the cases to the court of their choice. It is just going to be a matter of motions practices between the lawyers and I think they will get that issue resolved first, and that should happen relatively soon, that will be a potential indicator of how it is going to go ultimately.

Q. Rich Roth: You talked a little bit about the fact that they are going to figure out where this case is going to be heard. One of the interesting things I’ve heard brought up and again would like some clarification, what the court system is going to determine is not necessarily Brady’s guilt or innocence but it is more about the procedures and whether or not the NFL followed the proper procedures according to collective bargaining agreement, is that right?

A. Dan Summerlin: Yes, you are dead-on there Rich. The court is most likely not going to delve into whether or not Tom Brady did or didn’t do this. The NFLPA is smart enough to know that. So when you look at the statement issued, it is all about the procedure and that the NFL and Goodell violated the CBA by doing what he did and that is the way that they have to attack this thing. You aren’t going to see a whole lot of “Brady did this” or “Brady did that”. It would be interesting to see how much Brady will have to testify at any of these hearings. I don’t know how much he will, because it is going to be mainly a procedural question. The question is, “did the NFL have a policy in place that applied to this situation?” The NFLPA says “no”, and says that the policy only applied to personnel and not necessarily the players. They also say that Goodell should have recused himself if he was a potential witness and that is how they will decide to attack it verses what actually happened.

Q. Dennis Carter: Dan, we are only a few days away from the start of August, the NFL season starts early September, can this thing be resolved in any way before the start of the season, it sounds like a lot has to happen between now and early September so we know whether Tom Brady is going to play or not.

A. Dan Summerlin: Yes, the preliminary injunction process can happen relatively quickly, so it can happen before the season starts without any question. It is sort of a mini-trial—it is not the full fledge process. The NFLPA, to get the injunction order is going to have to show a couple of things. Two main things are important here, one, that it has a substantial likelihood to win in the ultimate court case. Saying “listen judge this is what we think our evidence is and we think eventually that is enough that we are going to prevail and show it in the full court hearing”. Two, it’s has to show that Tom Brady was irreparably harmed if he is not allowed to play. It is going to be interesting to see how they say he is being irreparably harmed by not being allowed to play. Most of the time we think being irreparably harmed means money cannot make you whole. So if Brady is just going to lose some game checks ultimately that all can be paid back if he is found to be innocent and that the NFL violated the CBA. Is not playing four football games irreparable harm, to him? That might be a tough hurdle to clear.

Q. Rich Roth: Would that be where the legacy issue comes on? Is reputation being harmed or destroyed and that he is an upstanding citizen and all of this stuff and now all of the sudden his reputation will be ruined.

A. Dan Summerlin: I think you’ll see them throw some of that stuff in that, we will have to see what they are claiming the irreparable harm is. I don’t think it’s that the Patriots could be 2-2 after four games. I don’t think any judge is going to buy that as being irreparably  harmed, but they are going to have to talk more about what the impact is for Brady not being allowed to play, and it can’t just be a money thing, the money will not be sufficient to establish that.

Q. Rich Roth: On the injunction, you said this is kind of like a mini-hearing in order for the injunction to be granted. In order for it to be granted by the court, it has to look like there is at least a good chance that the players association will win or prevail in the actual trial. So if they are not granted the injunction, then there is no real purpose for there to be a court case right? He will wind up being suspended because you can’t stop it because the NFL has already suspended him right?

A. Dan Summerlin: You’ve got it! That is why in a lot of these cases, the preliminary injunction, while it is just a sort of the temporary preliminary trial, it ultimately resolves the case a lot of times because after it has been had, whether it has been issued or not, the parties often realize they just need to get together and work it out, so you are exactly right. If it is denied, Brady will be suspended barring them appealing it to a higher court, which certainly both sides have tried to do so it is going to be an interesting two weeks as far as the legal perspective to see exactly how this unfolds.

Q. Dennis Carter: At this point, no one knows what is going to happen, what is your best guess? What do you think is going to happen, and will we see Tom Brady at the beginning of the season?

A. Dan Summerlin: My guess is I think this is a tough hurdle for the NFLPA, I know you’ve heard other people say that they think getting an injunction is not that big of a deal. If they end up in the court in Minnesota maybe he has a shot at it but going to this idea of irreparable harm I think is a tough thing for the NFLPA to prove and establish. I’m not saying it couldn’t happen, I just think it is a tough hurdle. Ultimately what I think is going to happen is that the sides will work it out eventually and resolve it (like in most cases).

Q. Rich Roth: Interestingly, what I have heard, in cases like this when the procedural issues are collectively bargained, courts are less likely to overturn something because it is a situation which the NLFPA and the NFL collectively bargained the way this was done. After you agree that “yeah, this is how it is going to be done” to sit back and say, “well we don’t like it, it’s not fair!” Courts, from what I’ve read aren’t really as willing to jump in its more “you guys work it out, this was your own deal.”

A. Dan Summerlin: That is exactly right. This was an agreement between two sophisticated sides and I’m not throwing the NFLPA negotiators under the bus here but that is a decision they made early on in the process—to allow Goodell to have this appeal power and everything else, so to complain about it now is tough. My guess is they said “listen, this process is only going to affect a very small minority of our players and we will give on this issue in order to get more for more of our players, whether it is more money or something else.” Unfortunately, for them four years later, here we are with one of the most popular players and perhaps the best quarterback in history who it is being applied to, so it has gotten a lot more profile than it should or otherwise would.

Q. Rich Roth: Wow, I didn’t like that last part, “best quarterback in history” Dan.

A. Dan Summerlin: Well, I might have gone a little far there. Joe Theismann still has to be there somewhere, right?

Q. Rich Roth: (Laughs) That’s exactly right. You just said, and again it is just speculation—do you think that ultimately something winds up being worked out, even though they weren’t able to do that until now?

A. Dan Summerlin: Yes, and again, that is how most of these things end up playing out. Until the court has filed and the people see the inside of a courtroom sometimes that gets them a little extra motivated to settle and we will see but I think it is a tough road for the NFLPA but that doesn’t mean they can’t win.

Q. Dennis Carter: Do you feel like this hurts the league in any way, all of this talk about ‘deflategate’, do you think it hurts the NFL’s reputation at all? I know Bob Glauber even mentioned that it maybe creates a little bit more interest in the league and it will have more people, more eyes, on the New England Patriots and the NFL once the season kicks in. How do you see this effecting the leagues reputation?

A. Dan Summerlin: Sitting here on July 29 and we are talking about the NFL, I’ve got to believe the NFL isn’t terribly upset by this. Otherwise, this is just a dead period for them, but I don’t really view how this hurts the NFL. It is giving an interesting legal lesson for us all watching it play out, but the fact that is such a high profile guy involved, that creates a ton more interest than if this was just a run-of-the- mill quarterback.

Q. Rich Roth: Lots of drama, like you said at a time when people are excited for football to start but there’s not really a lot to talk about, certainly gives us something. You’re right on the money there. Thank you Dan!

A. Dan Summerlin: I really appreciate it guys!

Q. Rich Roth: Thank you, appreciate your time and insight!


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