Some have theorized Berman’s heavy criticism of the NFL is less representative of his thoughts than it is his playing devil’s advocate — that he’s hammering the more uncooperative party of the two (the NFL, per the theory) to undermine its confidence and prompt a settlement.
Wallach dismisses this argument, saying Berman’s criticisms have been so blistering if the case were a 15-round fight, it would have been stopped in the second round.
“I have to believe the judge means what he says, and would look foolish to make those statements on the record, that were very emphatic statements, and do a 180,” Wallach said.
All that said, the fairness argument is not enough to justify Berman’s outright vacating the award; instead, it would simply mean remanding the case back to arbitration with a mandate that Pash be made available. In such a situation, Goodell could again appoint himself arbitrator and run another “kangaroo court,” per Berman. Thus Wallach believes Berman’s decision will come in tandem with a finding in Brady’s favor on the notice argument or the argument Goodell was an “evidently partial,” or biased, arbitrator. The former would be ground for vacatur, and the latter would see a second round of arbitration before an objective arbitrator.
“What I see here is a Brady victory centered around the exclusion of Pash and the investigative notes, plus either a bias finding or no notice,” Wallach said. “The “no notice” issue would create an outright victory for Brady without having to go through the facade of a new arbitration before the same commissioner.”
