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Tom Brady, N.F.L.P.A. Lose Petition For Full Second Circuit Review

Patriots Colts

Tom Brady’s attempt to block enforcement of the four game suspension imposed due to the so-called ‘Deflategate’ scandal suffered another legal setback today when the full Second Circuit Court of Appeals denied the request filed on his behalf for an en banc review of the ruling of a three-judge panel that upheld the suspension:

Tom Brady, the New England Patriots quarterback, is all but guaranteed to start the season on the sideline after a federal appeals court on Wednesday denied his request to review his four-game suspension for his role in a scheme to deflate footballs.

The decision, announced in a one-page notice by the United States Court of Appeals for the Second Circuit, may also put an end to one of the most widely watched and embarrassing scandals in the history of the N.F.L. The case, which began in January 2015, raised awkward and unseemly questions about the powers of the commissioner and the motivations of one of the most decorated players in league history.

Brady can still ask the Supreme Court to hear his appeal to have his suspension overturned, but given the timetable of the court, and the fact that the season begins in less than two months, the chances of any relief coming before opening day are remote.

(…)

The N.F.L. Players Association said it was reviewing its options, but did not specify whether it would appeal to the Supreme Court. In a statement, the players’ union said that the Goodell made “clear violations of our collective bargaining agreement.”

“Despite today’s result, the track record of this league office when it comes to matters of player discipline is bad for our business and bad for our game,” the union said. “We have a broken system that must be fixed.”

Regardless of what one thinks of the merits of Brady’s appeal or the original sanctions imposed upon him, the outcome here is hardly surprising. It is generally quite rare for any of the Circuit Courts of Appeal to grant en banc review, and the Second Circuit is apparently even more parsimonious in granting such review than many of its sister Circuits. In recent years, for example, en banc review was granted in less than two percent of the cases in which it was requested. Given that, it was always quite unlikely that Brady’s request would be granted. Indeed, it’s not entirely clear why the legal team handling this matter decided to pursue this route rather than take an appeal directly to the Supreme Court, which is now Brady’s last and best hope to stop the suspension from being imposed when the season starts in September. Had they done so after the opinion of the three-judge panel in April, it’s possible that we would’ve heard from the Justices on whether they would accept the appeal before they adjourned for their summer break. As things stand now, the earliest that the Justices will announce any decisions on requests for review would be roughly a week before the Court reconvenes in October. At that point, the four week suspension would be effectively over and the appeal would be moot, of course, which is why the first step for Brady now will be to seek a stay of the Appeals Court ruling until at least the Supreme Court has ruled on his petition for review, and until it rules if it decides to accept the underlying case. Given the fact that time is quickly running out, one suspects that this will happen as soon as possible.

The reality, of course, is that the vast majority of petitions for review that are submitted to the Supreme Court are denied, so the odds are against Brady yet again, although they are slightly better than those favoring the granting of an en banc petition. Indeed, the only thing that petitioning the high court for review may do is push back the time during this season when the sanctions will take effect. If there is no stay, for example, then Brady would miss the Patriots opening game against the Arizona Cardinals on the road, followed by three home games against the Dolphins, Texans, and Bills. Even with Brady at the helm, that opener against Arizona is going to be a tough game that the Patriots could lose regardless of who the Quarterback is. The three home games, though, are ones that a team like New England would seem to be well-prepared to win even without Brady. A suspension later in the season could come at a much more crucial time in the season. Thus, it might arguably be best for Brady to take the suspension rather than pursue the appeal, although the implications of this case for relations between the league and the Player’s Association may make it difficult for Brady and the N.F.L.P.A. to just abandon the case. In any case, we should know within weeks how this will finally resolve itself.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. James Pearce says:

    Wah wah wah.

    If Tom Brady was Damien Echols, he’d still be on death row, saying, “But it’s the principle, man.”

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  2. Tyrell says:

    I remember some engineer did an experiment on this and proved that temperature can effect the air pressure in the footballs – they were inflated inside and then taken outside. The same principle as cold and warm tire pressure variations. It was a simple experiment that a 6th grader could do. It seems like this would get Brady off the hook: lots of reasonable doubt here.

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  3. Pete S says:

    @Tyrell:

    It doesn’t matter. The only legal argument going on is whether or not Goodell had the right to suspend Brady and hear the appeal under the terms of the CBA. Whether Brady did anything wrong, or whether the 4 game suspension was suitable for an equipment violation even if he did, are not part of this anymore.

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  4. James Joyner says:

    What amuses me about the whole thing is that this was all collectively bargained. The pkayers, as always, fought for more up front cash and let slide things like Commissioner power over punishment. This is clearly within the scope of Goodell’s authority.

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