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Judges Seem Skeptical of Tom Brady’s Deflategate Claims

Patriots fans may have to break out their Tom Brady accessories if Thursday’s appeals court session was a sign of things to come.Credit...Maddie Meyer/Getty Images

A federal appeals court panel indicated Thursday that it was not sympathetic to Patriots quarterback Tom Brady’s defense in what is known as the Deflategate case, perhaps signaling that it will overturn the district court’s ruling against the N.F.L.

The hearing was ostensibly about whether N.F.L. Commissioner Roger Goodell overstepped his bounds as arbitrator in Brady’s appeal of his four-game suspension. Judge Richard M. Berman of Federal District Court in Manhattan ruled in September that Brady had not been treated fairly and should not be suspended for deflating footballs because he had not been aware that such misconduct could lead to the kind of punishment he had received.

The three-judge panel for the United States Court of Appeals for the Second Circuit signaled from the outset that, rather than focusing on the question of Goodell’s authority, they were more interested in the details of Deflategate, including why Brady destroyed a cellphone the N.F.L. wanted to see and whether a four-game suspension was appropriate for tampering with how much air was in a football.

Goodell and Brady did not attend the appeals hearing, unlike in August, when they appeared twice in the courthouse next door and attracted hundreds of onlookers and dozens of television crews.

But the tension in the courtroom Thursday was palpable as lawyers for both sides were questioned for more than an hour, and it appeared that at least two of the judges were skeptical of arguments made by Jeffrey Kessler, the lawyer for the N.F.L. Players Association, which was representing Brady.

Of the three judges on the panel, Barrington Daniels Parker Jr. was the most critical of Brady’s claims. Denny Chin, another judge, also seemed to have reservations about Kessler’s arguments. Chief Judge Robert Katzmann appeared to be the most sympathetic.

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Judge Richard M. Berman of Federal District Court in Manhattan ruled in September that Tom Brady had not been treated fairly and should not be suspended.Credit...Larry Neumeister/Associated Press

“Anyone within 100 yards of this proceeding would have understood the cellphone issue would have raised the stakes,” Parker said. “Mr. Brady’s explanation made no sense whatsoever.”

The N.F.L. has argued that Goodell was justified in suspending Brady because Brady had obstructed the league’s investigation when he destroyed one of his cellphones, conduct that the commissioner thought was detrimental to the league.

Brady said that he routinely destroyed his phones to protect his privacy, and Kessler on Thursday said that the league already had the text messages they were seeking from Brady. Kessler also said the league never told Brady that he could be suspended for four games if he failed to hand over his phone.

Katzmann said that the league’s list of penalties for various infractions might not be complete and that the Brady case could have been an exception that would have required a penalty not previously detailed. “The commissioner can be confronted with novel situations that are not per se identified in the roster of fines,” he said. “Isn’t that why the agreement gives the commissioner broad latitude” to rule?

Some lawyers in court Thursday said the chances were high that Berman’s ruling would be overturned and Brady would again face a four-game suspension.

“It was not a good day for Brady, and I don’t care how you spin it,” said Daniel Wallach, a sports lawyer from Fort Lauderdale, Fla. “The questions speak volumes.”

There was no timetable for the judges to rule on the appeal, although decisions typically take months to be released. Paul Clement, a lawyer for the N.F.L., asked the judges to expedite their decision.

“It would be an awful shame if this would have to hang over the league another whole season,” Clement said. If the N.F.L. is successful and Brady is suspended again, Brady’s lawyers could ask the entire appeals court to consider their case.

The case began in January 2015, when the league discovered that several of the game balls used by the Patriots in the A.F.C. championship game against the Indianapolis Colts were underinflated.

After a lengthy investigation that cost several million dollars, the league determined that Brady was “generally aware” of a scheme to manually deflate the balls, presumably to make them easier to grip. Two Patriots staff members were fired by the team. The league suspended Brady for four games, fined the team $1 million and took away two draft picks.

In his appeal, Brady’s lawyers argued that the league suspended him based on one argument, then upheld the suspension based on another argument. On Thursday, Kessler could not even complete his first sentence before the judges cut him off.

“So why couldn’t the commissioner suspend Brady for cellphone destruction alone?” Parker asked. “This all strikes me as hyper-technical,” he added.

Chin said that although the destruction of Brady’s cellphone was discovered after the original suspension was handed down, it could conceivably be considered by an arbitrator when deciding whether to uphold or overturn that suspension.

“The destruction of the phone was just a further step in the failure to cooperate, so they are connected,” he said.

A version of this article appears in print on  , Section B, Page 9 of the New York edition with the headline: Judges Seem Skeptical of Brady’s Deflategate Claims. Order Reprints | Today’s Paper | Subscribe

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