Ray Duckler: When searching for answers on Deflategate, McCann is The Man

  • FILE - In this Aug. 12, 2015 file photo, NFL Commissioner Roger Goodell, right, leaves federal court in New York. A federal appeals court has ruled, Monday, April 25, 2016, that New England Patriots Tom Brady must serve a four-game "Deflategate" suspension imposed by the NFL, overturning a lower judge and siding with the league in a battle with the players union. (AP Photo/Mary Altaffer, File)

  • FILE - In this Aug. 12, 2015 file photo, NFL Commissioner Roger Goodell, right, leaves federal court in New York. A federal appeals court has ruled, Monday, April 25, 2016, that New England Patriots Tom Brady must serve a four-game "Deflategate" suspension imposed by the NFL, overturning a lower judge and siding with the league in a battle with the players union. (AP Photo/Mary Altaffer, File)

  • New England Patriots quarterback Tom Brady takes the field before a NFL football game against the Philadelphia Eagles at Gillette Stadium in Foxborough, Mass.Sunday, Dec. 6, 2015. (Winslow Townson/AP Images for Panini)

  • FILE - In this Nov. 3, 2013, file photo, New England Patriots offensive coordinator Josh McDaniels, right, talks to quarterback Tom Brady during the fourth quarter of an NFL football game against the Pittsburgh Steelers in Foxborough, Mass. A federal appeals court has ruled, Monday, April 25, 2016, that New England Patriots Tom Brady must serve a four-game "Deflategate" suspension imposed by the NFL, overturning a lower judge and siding with the league in a battle with the players union. (AP Photo/Steven Senne, File)

Published: 4/27/2016 12:37:31 AM

He teaches a class called Deflategate: The Intersection of Sports, Law and Journalism, at the UNH School of Law here in Concord.

He was in the front row at the appeal hearing last month in New York City, injecting himself into the testimony like a pressure gauge in a football.

His name is Mike McCann, and he’s the law professor who the New England news media have turned to again and again the past 15 months, hoping to make sense of the story that won’t go away.

The saga continued Monday, when the U.S. Court of Appeals for the Second Circuit voted 2-1 to reinstate NFL Commissioner Roger Goodell’s four-game suspension.

Since then, it seems, most of the country is convinced that Tom Brady was part of a plot to alter football’s during the 2015 AFC title game against the Indianapolis Colts.

Here, not surprisingly, a different narrative has evolved. McCann, who lives in Massachusetts and works in New Hampshire, makes no attempt to hide his love for the Patriots.

But that, he says, has not clouded his judgment when it comes to analyzing, from a legal standpoint, what will forever be known as Deflategate.

“I evaluate sports issues as objectively as possible, honestly,” McCann told me Tuesday by phone. “Growing up following one team or another becomes truly irrelevant when studying some of the legal issues. If this involved the New York Jets, I would say the same exact thing.”

McCann has been pulled in different directions this week like a wishbone. TV and radio media outlets want his take, viewing him as a bottom-line source.

McCann says Goodell wielded too much power, even though the 2011 collective bargaining agreement between the league and the players’ union gave him broad discretion to dole out punishment as he saw fit.

What would have happened, McCann asked, if Goodell had given Brady a lifetime suspension? Did he have the right to do that?

“I understand the majority view that says the union turned over sweeping authority to the commissioner, and that’s a conceivable viewpoint when looking at the law,” McCann said. “But there has to be limits that are consistent with the law.”

He says it’s unjust that Goodell initially suspended Brady for his role in deflating footballs, then argued on appeal that Brady was being punished for not cooperating with the investigation.

“The premise for the punishment changed, and I think that goes to notice and fairness,” McCann said. “If the premise of the punishment changes during appeal, then you have effectively lost your right to an appeal based on the new reasons that have been brought. The punishment should be based on the original material.”

Elsewhere, McCann wondered why Goodell sought a suspension. After all, the rules say an equipment infraction, such as using a sticky substance to help catch passes, is punishable by a mere fine.

A four-game suspension? Where did that come from?

And what about the analogy Goodell used, comparing deflated footballs with performance-enhancing drugs, another issue that is specifically cited in the rule book?

“There must be consistency and fairness in arbitration awards related to labor management,” McCann said, “and in this scenario, there were real questions about inconsistencies.”

In a sense, the bottom line is this: Why in the world did the players agree to the latest collective bargaining agreement, signed in 2011? How could they allow Goodell to preside at an arbitration hearing challenging his initial discipline?

For added perspective, I turned to Rich Gulla, president of the State Employees’ Association of New Hampshire.

Of course, Gulla sides with the NFL union, and of course he backs Brady. He stopped short of criticizing the players association leadership on the deal it made, but said, “We have negotiated in all of our bargaining union contracts language that has fair and independent arbitrators for when employees need to go forward in these types of matters.

“Unfortunately, that is not the case for Tom Brady, and we stand behind him in his efforts.”

So now what? Where do we go from here? Is this over, or does Brady continue to fight, hoping to start the season on the field, not the bench?

There’s hope, McCann said, for an appeal to the full Second Circuit, perhaps even the Supreme Court, because, one, Monday’s vote was not unanimous, and, two, the dissenting vote came from Robert Katzmann, the chief judge.

“That’s pretty important, the chief judge issuing the dissent and one that was very critical of the NFL,” McCann said. “As the chief judge, he’s likely someone who has more influence, a more authoritative voice than let’s say a brand new judge.”

Don’t count on an appeal, though. McCann says the odds for another hearing “are very low.”

But while Brady may sit in September, McCann’s next class, focused on something called Deflategate, will be in action.

“It’s weird that a controversy about equipment could have this impact on my life,” McCann said. “I don’t know what to make of it, don’t know whether it’s good or bad, but it happened and you’ve just got to roll with it.”




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