Outside the Beltway

Tom Brady, N.F.L. Players Association To Seek Review Of Appeals Court Deflategate Decision

Deflategate isn't over yet and, depending on what happens in the Courts, could still be unresolved at the end of the N.F.L. season that begins in September.

Doug Mataconis · Monday, May 23, 2016 · 2 comments

With the time for N.F.L. players to return to training camp fast approaching, New England Patriots Quarterback Tom Brady has appealed the decision of a panel of the Second Circuit Court of Appeals that itself reversed the opinion of a District Court Judge overturning his suspension in the so-called “Deflategate” scandal:

With Monday looming as a deadline for an appeal of his four-game Deflategate suspension, lawyers for Tom Brady will petition for a hearing before the full panel of judges of the U.S. Court of Appeals for the Second Circuit in New York.

Theodore B. Olson, attorney for the NFL Players Association, told “Good Morning America”that the appeal would be filed later Monday.

“Our two primary arguments are that the commissioner in the first place conducted an investigation and then the commissioner imposed discipline. Then the commissioner appointed himself as an appellate judge or an arbitrator and then decided something new in the appellate process, abandoning the grounds that were the original basis for the supposed discipline,” Olson said. “That’s number one, and an appellate judge is supposed to look at the record and make a decision on the basis of what happened before. He departed from what happened before. Secondly he ignored important provisions of the CBA [collective bargaining agreement] about discipline that might be imposed for equipment violations. He departed from that completely and went off the track.”

The addition of Theodore “Ted” Olson to the legal team is a pretty strong indication that the N.F.L. Players Association is committed to a full litigation of the appeal in this matter, and that an appeal to the Supreme Court would most likely immediately follow either an adverse decision by the full Second Circuit or a decision by the circuit to refuse to accept for en banc review. Olsen, of course, is one of the most well-known appellate litigators in the country and has previously been involved in some of the most high profile cases to go before the Supreme Court, including several of the cases involving challenges to various aspects of the Affordable Care Act, the challenge to California’s Proposition 8, as well as challenges to the Defense of Marriage Act and state law bans on same-sex marriage to name just a few. In other words, Olson is the kind of lawyer you bring in if you’re anticipating that the case will ultimately make it to the Supreme Court. In this case, since it is quite rare for any of the Circuit Courts Of Appeal to grant en banc review of a panel decision the assumption is that this petition will be denied and that Brady and the NFLPA will be left with the prospect of appealing the matter to the Supreme Court. At that point, the question will be whether there are four Justices who believe the case should be heard and, in that case, your guess is as good as mine. As far as timing goes, though, it’s unlikely that this entire process will be resolved before the start of the season regardless of whether or not en banc review is granted. It will be mid-summer at least before the briefing process for the en banc petition is complete and, after that, it could take several months at least for the Second Circuit to consider the matter. If review is granted, then a hearing is unlikely until some point close to the end of 2016 and a decision shouldn’t be expected until early 2017. If review is not granted, then there will be a petition process before the Supreme Court that would likely last well into the fall of this year, with a decision from the Justices on whether to accept the appeal not likely before the end of the year. If the Justices grant review, there would likely be a hearing sometime early in 2017, and a decision at some point before June 2017. In other words, just by following the appeals process Brady and the NFLPA could delay the point at which Brady has to worry about serving the suspension if he loses to as a late as the beginning of the 2017 N.F.L. season.

It’s difficult to say which way this case is headed on appeal. As I said when the original District Court decision was handed down last year, the flaws in both the evidence the league had against Brady and the process that was followed in the original disicplinary process and the appeal were problematic to say the least, not only under the relevant Federal labor laws, but also the Federal Arbitration Act, which governed the arbitration that constituted Brady’s appeal of the original suspension. The Appeals Court panel majority rejected these arguments and seemed to accept the league’s argument without question but, as the dissent in that case noted, the flaws in the process remain notwithstanding the evidence and, if the process was flawed then the arbitration arguably should not be allowed to stand. Whether either the Second Circuit or the Supreme Court sees it the same way remains to be seen, but all of that will be playing itself out in the Courts even as Brady and the Patriots seek a return to the Super Bowl this season.

Here’s a copy of the en banc petition:

NFL Et v. NFLPA and Brady Et Al by Doug Mataconis