THE BLOG

Settle Deflate-Gate

05/18/2015 06:03 pm ET | Updated May 18, 2016

It is always difficult to avoid conflict when two adversaries are fully armed and ready to enter the battlefield. Some say that is why The Great War was inevitable. But the Cold War never produced the predicted Armageddon. It is possible to resolve disputes short of mutual destruction.

Although disputes in the business of sports do not have the import of great battles and total warfare, the lessons of conflict resolution can be learned and used to reduce the extent of damage to both sides. The two parties to Deflate-gate have "lawyered-up" and exchanged biting memos that do not portend well for the relationship between the combatants. NFL Commissioner Goodell has indicated that he personally will hear Tom Brady's appeal from his four-game suspension. Brady has hired Jeff Kessler, perhaps the best employee-side litigator in the game, to represent his interests in the proceedings. While the procedure is different regarding the Patriots appeal of its fine and loss of draft choices, the New England club has also secured the services of a splendid attorney, Dan Goldberg of Morgan Lewis. Goldberg's retort to Ted Wells' report was lawyering at its best.

The legal issues the League, the club and the quarterback will face are not as important as the business interests that are at stake. Goodell cannot seem to favor his old friend Bob Kraft, owner of the Patriots, lest he lose face. However, he must appear to be fair in order to maintain public support for his valuable enterprise. Kraft, an important architect of the current $10 billion a year NFL business, is absolutely livid over the aspersions cast at his club and the man who has brought it such fame, Tom Brady.

No one will profit from the next steps in the process. If the Commissioner upholds all the penalties as announced, he will subject the League to months or years of litigation. The Patriots and Mr. Brady will not be well served by a protracted dispute. The American sporting public seems torn by the conflict. The average sports fan outside of New England finds the Patriots to have earned their penalties whatever the evidence might show. The envy is obvious. These are the costs of too much success. In any case, the dispute is a major distraction.

Both sides are in a no-win situation. It is unlikely that Brady will prevail before a Commissioner who was really the acting party when Troy Vincent announced the penalties. At best he might secure a reduction in his suspension, but that would cost the Commissioner in his effort to demonstrate that he is fully in charge. For sure, the Commissioner cannot afford to wade into the weeds of the dispute explored in the Wells and Goldberg reports.

Both sides need a better way out. They need to settle Deflate-gate and look ahead to the coming season. What that settlement will look like depends upon the willingness of both parties to compromise. Such a reasoned and reasonable approach is necessary in any organization, and Kraft and his 31 fellow owners need a strong, but not arbitrary and capricious, commissioner. There is reason for both parties to want to avoid the costs of further proceedings, and not just the bills from their lawyers. The NFL has had a difficult few years with spousal and parental abuse claims aired on a regular basis and the awful damage the players have suffered (and will continue to suffer) to their bodies and minds from playing the game.

On Thursday night September 10, 2015, the NFL season kicks off at Gillette Stadium in Foxboro, Massachusetts. It is normally a festive occasion for the League that will be forever tarnished if Tom Brady, a future Hall of Fame quarterback, is not on the field to lead the defending Super Bowl champions. Any settlement of Deflate-gate scandal that does not recognize that there is absolutely no direct evidence of Brady's complicity in any conspiracy will be seen for what it is -- an inference drawn on a supposition based on a guess. Brady's unwillingness to give Ted Wells all the information he requested, however, deserves a monetary penalty. The Patriots club also deserves some monetary penalty and perhaps the loss of a draft choice.

Virtually all litigation is settled and not tried to completion in court. There are some fine lawyers involved in this case, among the best in their fields. They should work out a deal that will serve the interests of all concerned.