Saturday September 26th, 2015

The possibility that New England Patriots quarterback Tom Brady could be back in court during the playoffs rose on Friday when the NFL filed a motion in the U.S. Court of Appeals for the Second Circuit for an expedited proceeding. The league hopes that a yet-to-be-named three-judge panel on the Second Circuit will reverse U.S. District Judge Richard Berman’s Sept. 3 decision in Brady’s favor. The National Football League Players Association consented to the league’s motion, thus increasing the odds that an expedited proceeding will be granted.

NFL
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Regardless of whether the NFL’s motion to expedite is granted, the earliest Brady could serve a suspension would be at the start of the 2016 regular season. This is in part because the league’s proposed timeline for an expedited appeal would extend into 2016. Specifically, the NFL would file its brief by Oct. 26, followed by the NFLPA filing its brief by Dec. 7 and the NFL filing a reply brief by Dec. 21. According to this proposed timeline, both sides would present oral arguments in court in early 2016. The court would then likely take at least several weeks to render a decision. This proposed timeline—which may move faster than the schedules of the judges would permit—should extend past Feb. 7, 2016, the date of Super Bowl 50. The NFLPA, moreover, would not have consented to an expedited timeline that in any way might threaten Brady’s 2015 season. At this point, Brady’s 2015 season seems quite likely to include the playoffs and it might also include Brady’s seventh Super Bowl appearance.

While an expedited appeal would not threaten Brady’s 2015 season, it could still prove to be a distraction for him and possibly his team. Most of an expedited appeal would take place during the regular season and the playoffs, whereas the bulk of a normal appeal would occur during the off-season. Brady’s level of engagement in the appeal will be up to him. An appeal is conducted entirely by the attorneys and is based strictly on legal arguments. No witnesses testify in an appeal and no evidence is presented. Brady would not even have to attend court the day oral arguments are presented. Given that Brady’s time is more limited during the season than it was during the summer, Brady might let the attorneys handle the appeal without his active involvement. On the other hand, Brady might feel that attending oral arguments in New York would exhibit solidarity with his union and also demonstrate to the three appellate judges his commitment to the case.

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The NFL’s request for an expedited appeal is likely designed to ensure that it has some resolution in Brady v. NFL prior to the 2016 regular season. A normal appeal would take on average 10 months and possibly extend into next fall. The league—and probably also the NFLPA and Brady—do not want their litigation to cloud the 2016 season as it has the 2015 season. The league also hopes to reverse Brady’s win as soon as possible because of its precedential impact. Put simply, players disciplined by the NFL will now be more inclined to challenge the league in the U.S. District Court for the Southern District of New York and cite Brady v. NFL as favorable precedent.

As I explained in another SI.com article, Brady will be heavily favored in the appeal. Judge Berman is seldom reversed and the judge’s decision in Brady v. NFL, though ripe for debate, was logically constructed.

NFL
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The appeals process could take years. The Second Circuit, for instance, could remand the case back to Judge Berman with new instructions. This would in some ways represent a win for the NFL, but it might prove to be a short-lived victory. Recall that Judge Berman intentionally declined to rule on certain issues—such as the lawfulness of NFL commissioner Roger Goodell hearing Brady’s appeal as a partial arbitrator. Judge Berman could use those remaining issues to again rule for Brady. This, in turn, would lead the NFL to file another appeal to the Second Circuit. It is also possible that the loser of the Second Circuit’s decision could petition for all judges on the Second Circuit to hear the appeal (an en banc appeal) and later petition the U.S. Supreme Court. Final resolution in Brady v. NFL might thus not occur for several years.

Then again, at any point in the time, the parties could reach an out-of-court settlement. Would Brady accept a settlement whereby he only has to pay a fine and only must admit to not being as cooperative as he could have been? Would the NFL offer such a deal? There’s a good chance the answer to both questions is “no.” That is one of many reasons why Brady v. NFL could be in court for a long, long time.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. This fall he is teaching an undergraduate course at UNH titled “Deflategate.” McCann is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and he teaches “Intellectual Property Law in Sports” in the Oregon Law Sports Law Institute

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