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Tom Brady facing Deflategate long shot despite en banc appeal petition

Tom Brady’s appeal of his four-game suspension may have a better chance of making it through the courts than most, but the Patriots quarterback still faces an uphill battle.

Hail Mary passes usually fail. They’re often swatted away, intercepted, dropped or land errantly on the field. But every so often they’re caught, and on rare occasion the outcome of a game is suddenly and stunningly reversed. Patriots quarterback Tom Brady, a three-time Super Bowl MVP, is as good a bet as any quarterback to complete a Hail Mary pass. The question is now whether his star-studded legal team is as adept at defying the odds and whether, through the legal equivalent of a Hail Mary pass, they can vindicate Brady before the NFL enforces his four-game suspension.

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On Monday, attorneys for the Brady and the NFLPA began their fourth quarter drive to reverse the score. They filed a petition in the U.S. Court of Appeals for the Second Circuit asking for a panel rehearing or, in the alternative, a rehearing en banc. These rehearings, which are detailed below, would enable Brady’s attorneys to re-argue the appeal that a three-judge panel of Chief Judge Richard Katzmann and Judges Barrington Parker, Jr. and Denny Chin ruled in the NFL’s favor on Apr. 25. As I detailed on that day, the three judges rendered a split decision on whether to affirm or reverse last year’s ruling by U.S. District Judge Richard Berman in Brady’s favor. Judges Parker and Chin sided with the NFL. The duo reasoned that the combination of deferential federal law for arbitrators and permissive language contained in Article 46 of the NFL-NFLPA collective bargaining agreement permitted NFL commissioner Roger Goodell to uphold his own suspension of Brady—even if, as the two judges conceded, Goodell’s factual and legal conclusions about Deflategate might have been wrong. Chief Judge Katzmann, in contrast, dissented in an opinion sharply critical of Goodell. Like Judge Berman, Chief Judge Katzmann appeared appalled that Goodell arguably changed the rationale for Brady’s discipline and that the NFL never reconciled its four-game suspension of Brady with, at most, fining players who used stickum.

Taken together, although four federal judges split 2–2 on NFL Management Council et al. v. NFL Players Association et al. (better known as Brady v. NFL), the NFL stands to prevail since the score is 2–1 at the federal appellate level. A panel rehearing or a rehearing en banc, however, would place the NFL’s victory in legal jeopardy. Either hearing would also increase the odds that Brady, rather than backup quarterback Jimmy Garoppolo, starts for the Patriots in Week 1 against the Cardinals.

Brady’s petition for a panel rehearing

A panel rehearing would entail the three judges who heard the NFL’s appeal hearing the appeal again. Chief Judge Katzmann, along with Judges Parker and Chin, will vote on whether to rehear the appeal. A majority vote will dictate the outcome, meaning that the vote will be either 3–0 or 2–1. If at least two of the three judges vote for a new hearing, the clerk of the Second Circuit would likely schedule a new hearing with attorneys for the NFL and NFLPA. Sometime after that hearing, the three judges would issue a new ruling that may or may not change the NFL’s 2–1 victory. Up until that ruling, Brady’s suspension would be automatically “stayed,” which means postponed.

Unfortunately for Brady, panel rehearings are almost never granted in the Second Circuit. This is not surprising since they require a panel of three judges to reconsider an appeal that those same three judges just considered and resolved. Chief Judge Katzmann would seem inclined to support a panel rehearing since it would provide him with an opportunity to persuade Judge Parker and Judge Chin to view the law as he does. There is no obvious reason, however, why either Judge Parker or Judge Chin would join Chief Judge Katzmann in seeking a do-over. Both clearly believe that Chief Judge Katzmann and Judge Berman interpreted the case incorrectly. Assuming Judges Parker and Chin reject the petition for a panel rehearing, none will occur.

Brady’s petition for a rehearing en banc

Brady’s odds are better, although by no means good, in regards to his accompanying petition for a rehearing en banc. In a rehearing en banc, all of the active judges on the Second Circuit, along with any senior status judges who sat on the three-judge panel in Brady v. NFL, would hear the appeal. This group would then reach a decision that might support the view of Judges Parker and Chin (i.e., the NFL wins), support the view of Chief Judge Katzmann (i.e., Brady wins) or enunciate a third view, such as opting to remand the case back to Judge Berman for additional proceedings. There would be 14 judges involved in a rehearing en banc. This is because there are 13 active judges on the Second Circuit (a group that includes Chief Judge Katzmann and Judge Chin) and because Judge Parker, a senior status judge who was on the three-judge panel, would also be eligible to participate.

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Brady seeks a rehearing en banc facing dispiriting statistics. Available data indicates that petitioners have approximately a 1% chance of being granted a rehearing en banc. As explained below, however, the odds might be slightly more encouraging for Brady.

The first step in a rehearing en banc will be for the 13 active judges to vote on whether the Brady case should be heard en banc. Brady needs a majority of the 13—at least seven—to support granting the hearing. Brady likely begins with one vote in favor (Chief Judge Katzmann) and one vote against (Judge Chin). Judge Parker, who is a senior status judge, is not eligible to vote on whether to grant a rehearing. This is a favorable dynamic for Brady, since Judge Parker ruled against him on the three-judge panel. Should a rehearing be granted, however, Judge Parker would join the 13 judges. In case you are wondering how Judge Berman might fit into this discussion, he does not. Judge Berman is a district court judge and thus plays no role in the appellate process or in any of the votes.

In addition to Chief Judge Katzmann and Judge Chin, the other active Second Circuit judges—the voters, if you will, for whether to grant a rehearing en banc—are as follows:

  • Judge Dennis Jacobs (71 or 72 years old; nominated by President George H.W. Bush)
  • Judge José Cabranes (75 years old; nominated by President William J. Clinton)
  • Judge Rosemary Pooler (77 years old; nominated by President Clinton)
  • Judge Reena Raggi (65 years old, nominated by President George W. Bush)
  • Judge Richard Wesley (66 years old, nominated by President George W. Bush)
  • Judge Peter Hall (67 years old, nominated by President George W. Bush)
  • Judge Gerard Lynch (64 years old, nominated by President Barack Obama)
  • Judge Raymond Lohier, Jr. (50 years old, nominated by President Obama)
  • Judge Susan Carney (65 years old, nominated by President Obama)
  • Judge Christopher Droney (61 years old, nominated by President Obama)

Predicting how these judges might view the Brady case is an exercise in speculation. As I explored in my analysis of the judicial philosophies of Chief Judge Katzmann and Judges Parker and Chin, judges are notoriously difficult to forecast. Some commentators believed that because President Obama, a Democrat, nominated Judge Chin, the 61-year-old judge would be relatively “pro labor” and thus favor Brady, a union member. For those of us who attended the March 3 oral arguments, that prediction was quickly disproven. Judge Chin articulated a viewpoint that strongly supported the NFL’s interpretation of the law and the league’s contention that nearly unlimited discretion ought to be accorded to Goodell.

Each of the 13 federal appeals judges who will vote on whether to grant Brady’s petition need not worry about the public popularity of their reasoning. Unlike an elected official, a federal judge has a lifetime appointment, a feature that is designed to encourage judges to rule in ways that they believe is legally correct, even if unpopular. Nonetheless, some might find the judges’ regional ties of interest, especially if there any connections to the Patriots’ fan base. Three of the 13 judges—Judge Cabranes (Connecticut), Judge Hall (Vermont) and Judge Droney (Connecticut)—are stationed in federal courthouses located in New England. None of the 13 judges, however, are stationed in a federal courthouse in Massachusetts, New Hampshire, Rhode Island or Maine. Those four states are under the jurisdiction of the U.S. Court of Appeals for the First Circuit, which plays no role in this litigation.

A vote on whether to grant a rehearing will take time

While there is no required timetable on how quickly the 13 judges will vote on whether to take Brady v. NFL en banc, it will not be instantaneous. In fact, if the 13 judges disagree about whether to rehear the case and if they opt to write accompanying opinions that explain their positions, several months might pass before there is a decision on whether there will be another hearing. This potential delay is meaningful for Brady: His petition automatically stays the suspension until the judges act on it.

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Expect additional court filings before there is any vote. For starters, the NFL will likely be invited by the Second Circuit to file an opposition brief. Such a brief would urge the judges to deny the petition for the rehearing and the accompanying petition for the rehearing en banc. Several non-parties who believe they have a stake in the case might also weigh in by filing amicus curiae briefs. From the Latin amicus curiae meaning “friend of the court,” an amicus brief is a formal filing that has been authored by a non-party person or group. This non-party purports to have an established stake in the case. The influence of amicus briefs is a source of debate, since judges can ignore these briefs. Nonetheless, some judges have been known to accord them weight.

As analyzed on in March, New York Law School Professor Robert Blecker has already authored an amicus brief in the Brady v. NFL appeal. Do not be surprised if others—particularly pro leagues and players’ associations—file their own. In other litigations, the NBA, NHL and MLB have filed amicus briefs in each other’s favor. Likewise, the NBPA, NHLPA and MLBPA might submit briefs in favor of Brady. On one hand, other leagues and players’ associations may view the Brady case as readily distinguishable from cases in which they would be parties. The Brady case only implicates the NFL’s CBA, which features a unique personal conduct policy with the commissioner wearing multiple hats and without a role for a neutral arbitrator. Other leagues and players’ associations have negotiated more collaborative personal conduct policies that feature checks and balances. On the other hand, most of those leagues and players’ associations are, like the NFL, based in New York and some of their labor-management disputes have been litigated there. This raises the possibility that the ultimate precedent of Brady v. NFL could impact potential labor-management cases involving other leagues that arise in the Second Circuit. Those leagues and players’ associations might therefore perceive an important stake in how Brady v. NFL is ultimately resolved.

It would behoove Brady if parties from outside of sports weighed in with amicus briefs. If labor groups, for instance, are concerned by the questionable consistency and problematic notice accorded to Brady, a union member, they might be more inclined to weigh in. The more Brady’s case is viewed as about fundamental principles of labor-management relations and the less about whether a star quarterback should be suspended over a bizarre equipment controversy, the more consequential his case would seem to the 13 judges. In that scenario, Brady would have better his odds that at least seven of the 13 judges will vote “yes” to grant the rehearing.

The 13 judges might disagree about whether to take on Brady v. NFL

Sometimes petitions for rehearings en banc lead to split views by the Second Circuit’s active judges. These splits can take many months to play out. For example, in 2015, four the 13 active judges—Judges Jacobs, Cabranes, Raggi and Lynch—supported a rehearing en banc in European Community v. RJR Nabisco. That case centered on whether the Racketeer Influenced Corrupt Organizations Act (better known as “RICO”) applies to foreign conduct. Five of the 13 judges believed that a three-judge panel on the Second Circuit had ruled in a way that contradicted precedent and was inconsistent with the statutory language of RICO. Nine of the 13 judges, however, thought otherwise and found the panel’s opinion compatible with both controlling precedent and the language of RICO. As a result of the 9-4 vote, the petition for a rehearing was denied. The timeline in that case is noteworthy: eight months passed from the date of the three-judge panel decision and the decision on the denial of the rehearing. Brady is set to serve his suspension in September—five months after the ruling by Chief Judge Katzmann and Judges Parker and Chin.

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Other times petitions for rehearings en banc in the Second Circuit are addressed unanimously and with relative haste. For example, less than four months after a three-judge reversed a district judge’s order in favor of three defendants prosecuted in an insider trading case (U.S. v. Newman), the Second Circuit issued a “per curiam” opinion that, without explanation and authored by the court as opposed to one judge, rejected the U.S. government’s petition for a panel rehearing or a rehearing en banc. As an interesting side note in that case, Dallas Mavericks owner Mark Cuban—who in 2013 defeated an insider trading civil case filed against him by the U.S. government—submitted an amicus brief in opposition of a rehearing. It’s unclear if Cuban’s brief had any influence, but his viewpoint carried the day.

Granting of a rehearing en banc would alter the Patriots’ 2016 and ’17 seasons

If Brady’s petition for a rehearing en banc is granted, he—and the Patriots—would immediately gain a substantial benefit: His suspension would be automatically stayed until not only a rehearing takes place, but until the judges who participated in the rehearing issue an order. As explained above, debate by judges over the decision to grant a rehearing could take several months. If granted, a rehearing would be scheduled at a later date. Given the logistical difficulties of scheduling a hearing for 14 federal appeals judges, all of whom already have busy caseloads and other life obligations, a rehearing might not be scheduled for several months. After that hearing occurs, months would likely pass before a decision. To be sure, it is difficult to make certain scheduling predictions given that the timing of these things is entirely up to the judges. To illustrate, we still await a decision by the U.S. Court of Appeals for the Eighth Circuit on the NFL’s appeal in the Adrian Peterson case, oral arguments for which took place 217 days ago. Nonetheless, there is a good chance that Brady would be able to play the entire 2016 season if an en banc rehearing is granted. This is true even if he ultimately loses the rehearing, a scenario that would mean that Brady would be suspended to start the first four games of the 2017 regular season.

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Still, predicting how quickly a court will act is an exercise in guesswork. Few expected that Chief Judge Katzmann, along with Judges Parker and Chin, would issue a decision merely 53 days after oral arguments took place on Mar. 3. Should Brady be granted a rehearing, he would likely be the starting quarterback in Week 1. But what happens if the appellate process moves with relative speed and, hypothetically, an en banc decision adverse to Brady is suddenly issued in the middle of November? The NFL would then suspend Brady for the next four games, which would be against the Seattle Seahawks, San Francisco 49ers, New York Jets and the Los Angeles Rams. At that point, head coach Bill Belichick would need to get Garoppolo up to speed quickly to play against tough opponents with perhaps the playoffs, or at least playoff seeding, on the line. This would be akin to Brady unexpectedly suffering an injury that knocks him out of play for four weeks. It would be a surmountable challenge, to be sure, but one that may be difficult to manage given that it would occur without notice. The worst-case scenario for Brady and the Patriots, of course, would be for a court to rule against during the playoffs in January 2017. The NFL could then attempt to suspend Brady during those playoffs games.

The Patriots might argue that they would rather Brady miss the first four games of the 2016 regular season than run the risk of Brady losing his case at an later and unpredictable date. Judges issue decisions when they see fit and will not factor in how a decision might impact an NFL’s playoff hopes. The Patriots currently have months to strategize for the first four games of the season and to prepare Garoppolo to face the defenses he’d face in those four games. The Patriots would obviously rather have Brady starting in those first four games, but at least they have months to prepare for his absence in them.

Why, in spite of very long odds, Brady’s petition for a rehearing en banc nevertheless has a fighting chance

Over the last few weeks, I have spoken with a number of judges, attorneys, law professors and others who are familiar with federal appellate litigation. Almost all of them predict that the Second Circuit will reject Brady’s petition. Their basic logic is that the Second Circuit rarely takes rehearings en banc and in the exceptional instance in which it does, the chosen case is of far greater importance than whether a quarterback ought to face four game suspension over allegations that he may have known about a supposed, albeit scientifically dubious, plot to use slightly under-inflated footballs.

Despite the disheartening landscape for Brady’s petition for an en banc, Brady has at least three reasons to feel somewhat hopeful.

1) Brady’s petition makes a plausible case that Judges Parker and Chin committed an error of exceptional importance

The most persuasive way to obtain a rehearing en banc is to persuade the active judges that not only was the three-judge panel in error but that the error contradicts precedent and, if not corrected, will cause confusion and uncertainty for other parties. Brady’s petition on Monday contends that Chief Judge Katzmann and Judge Berman correctly reasoned that the Goodell’s arbitration award violated the law by failing to draw its essence from the CBA and by embodying Goodell’s own brand of justice. If instead Goodell’s arbitration award is upheld, Brady contends, it would pose problems for other arbitration matters that could come before the court.

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Brady’s petition highlights Goodell allegedly changing the premise and rationale of the four-game suspension after Brady’s appeal, thereby denying Brady of a credible opportunity to appeal. It further charges that Goodell failed to draw the essence of his ruling against Brady from the CBA since Goodell failed to address analogous fines for payers implicated by stickum. These alleged errors, Brady insists, undermine core values in labor management relations and in the role of arbitration to resolve labor-management disputes. The more Brady can convince the judges that his case is about broadly applicable issues in labor-management relations, the better his odds. If, as mentioned above, Brady receives support in the form of amicus briefs filed by labor groups, his odds climb even more.

2) Arguably the top two appellate attorneys in the U.S. are advocates in this case

As I wrote earlier this month upon his hiring by Brady and the NFLPA, attorney Ted Olson is one of the most prominent appellate advocates in the U.S. over the last two decades. The same lofty praise also befits attorney Paul Clement, who successfully argued on behalf of the NFL during the Mar. 3 hearing. Olson and Clement are the Michael Jordan and LeBron James of the very exclusive world of federal appellate litigation. These are two attorneys who handpick which clients they represent—they don’t need the work or fame from being involved in Brady v. NFL. They are involved because the legal issues interest them.

Olson and Clement’s willingness to play critical roles in Brady v. NFL might accentuate the importance of the litigation in the eyes of the judges. If these judges don’t know Olson and Clement, they certainly know of them. This dynamic by no means makes it likely that the judges will support an en banc review, but it should nudge the odds up a bit.

3) The odds have been anything but predictive in this case.

Last fall, several attorneys, myself included, predicted that Judge Berman would vacate Brady’s suspension. This prediction was not based on odds or any data. In fact, the odds and data indicated that we would be wrong. Federal judges rarely vacate arbitration awards, and Goodell’s decision to uphold Brady’s suspension was a type of arbitration award. Judges are expected to supply high deference to arbitrators. Nonetheless, Judge Berman’s difficult questioning to NFL attorneys during hearings signaled which way he was leaning and it was not in the NFL’s favor.

Judge Berman’s order being reversed by a 2-1 vote was just as unlikely. As explored in an study, Judge Berman was only reversed 8% of the time and only 12% by the three judges on the three-judge panel. It was clear, however, following the Mar. 3 hearing that Judges Parker and Chin were skeptical of Judge Berman’s reasoning and seemed poise to reverse him.

The larger point is that the least likely outcome occurred at the two key moments in the Brady v. NFL litigation. Brady now needs a very unlikely outcome—the granting of a rehearing en banc—to occur at the third key moment. As they say, third time’s a charm.

The U.S. Supreme Court could ultimately hear the case

Brady would not be out of options if the Second Circuit’s active judges inform him that they are not interested in further review of his case. As a last resort, Brady could petition the U.S. Supreme Court to intervene. Brady’s attorneys wcould petition U.S. Supreme Court’s justice for the Second Circuit, Ruth Bader Ginsburg, to stay the suspension until the U.S. Supreme Court has acted on the case.

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In seeking a stay, Brady would argue that he would suffer “irreparable harm” in the event that he serves the suspension only to see it vacated later by a court. He would emphasize that he could never get those games back, even if he later wins the appeal. Further, Brady would contend that missing those four games would irretrievably damage his career and, by hurting the Patriots, harm Brady’s teammates and coaches. If the U.S. Court of Appeals for the Eighth Circuit affirms Peterson’s victory at the district court level, Brady might also contend that a split in the interpretation of the CBA exists between the Eighth Circuit and Second Circuit, and that the Supreme Court should resolve it. In response, the NFL would stress that Brady would still be paid if he later wins the appeal and that missing four games is hardly a career-changer. The NFL would also insist that Brady would not be able to show a likelihood of winning on the merits. Further, the league would highlight that the Peterson case is dissimilar from the Brady case in that it involves that retroactive application of rules, not a disagreement over which rules apply.

Unfortunately for Brady, stays are extraordinary measures and are seldom granted, and the Supreme Court only considers approximately 1% of petitions. I know this from experience and it connects to the NFL. I was a member of Maurice Clarett’s legal team in his antitrust lawsuit against the NFL over its eligibility rule. After the Second Circuit ruled against Clarett, Clarett petitioned Justice Ginsburg for a stay. It was quickly denied.

Brady may have better fortune, but his remaining options all face long odds.

Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. McCann also created and teaches the Deflategate undergraduate course at UNH. He serves on the Board of Advisors to the Harvard Law School Systemic Justice Project and is the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He is also on the faculty of the Oregon Law Summer Sports Institute.