Tuesday December 8th, 2015

While Tom Brady’s New England Patriots have lost two straight games, his legal team on Monday took a crucial step to protect his decisive courtroom victory over the NFL. In a 73-page brief, Jeffrey Kessler, David Greenspan and other attorneys representing Brady and the NFLPA detailed why a three-judge panel on the U.S. Court of Appeals for the Second Circuit should affirm U.S. District Judge Richard Berman’s Sept. 4 order. Judge Berman’s order vacated Roger Goodell’s decision to uphold Brady’s four-game suspension, thereby reinstating Brady and making him eligible to play the entire 2015 season.

Monday’s filing is merely one of several steps in what will be a lengthy appeals process. The process will last well into 2016 and possibly beyond. Indeed, by Dec. 21, attorneys representing the NFL will respond to Brady’s brief in a separate filing. The two sides will then prepare for courtroom oral arguments that have been scheduled for March 3, 2016, with a decision by the three-judge panel likely to be made by early summer. The decision by the three-judge panel—which has not yet been named—could then spark another appeal or a new hearing before Judge Berman. If you’re looking for swift closure to Brady v. NFL, you won’t find it.

Key arguments by Brady and the NFLPA

Brady’s brief only has one legal purpose: convince the appellate judges that Judge Berman correctly applied the law in vacating Goodell’s decision. The brief is thus not designed to convert those who believe that Brady participated in a scientifically questionable ball deflation scheme into believers of Brady’s innocence. Nor is it designed to clear the Patriots of alleged wrongdoing in the 2015 AFC Championship game. The brief is simply designed to show that Judge Berman correctly applied the law. And that’s all.

Major takeaways from the NFL's appeal brief of Deflategate ruling

With that goal in mind, Brady’s attorneys outline several key points. First, the brief reaffirms Judge Berman’s conclusion that Article 46 of the collective bargaining agreement (CBA) does not grant Goodell with unlimited authority to discipline players. This is not necessarily an obvious point. As the NFL has stressed, Article 46 makes clear that Goodell can punish players for “conduct detrimental to the integrity of, or public confidence in, the game of professional football” and that any appeals of penalties are heard by the commissioner or a delegate of the commissioner’s choosing. The wording of Article 46 thus indicates sweeping discretion for Goodell. Brady’s attorneys, however, insist that Goodell cannot disregard other collectively bargained policies when applying Article 46. Those policies include stipulated fines for certain types of misconduct and requirements that players be on notice of the type of penalty they face when they engage in specific acts.

Building on that point, the brief charges that Goodell engaged in an “obstinate refusal” to observe fundamental requirements of fairness. For example, as the brief contends, Brady could not have received adequate notice that he would be subject to a four-game suspension when “no player in NFL history had ever received a suspension for alleged football tampering or failing to cooperate with a League investigation.” This is particularly the case, Brady asserts, since the only collectively bargained penalty for alleged football tampering is a fine.

The brief also ridicules Goodell for justifying Brady’s four-game suspension based on the fact that the collectively bargained performance enhancing drug (PED) policy also calls for a four-game suspension. As Brady’s brief and other materials detail, a four-game suspension for PEDs was the result of thorough negotiations between the NFL and NFLPA. During CBA negotiations, the NFLPA was also supportive of a four-game suspension for PEDs because such a stiff penalty might deter players from using harmful substances. The NFL and NFLPA also devised carefully detailed procedures for PED testing, and those polices include specific rules for samples and chain of custody. In sharp contrast, there is no rule dictating that Brady should have received a four-game suspension for allegations he partook in a ball deflation scheme, nor are there any procedures in place for assessing those allegations. Indeed, the referees in the now infamous 2015 AFC Championship game weren’t even sure which pressure gauges they used to measure the football’s PSI levels, nor were all of the results of those measurements recorded.

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Brady’s brief hits at several other points, including that Brady could not have received a fair hearing before Goodell when the commissioner denied Brady’s attorneys an opportunity to question NFL general counsel Jeffrey Pash, who edited the Wells Report—the very document used by the NFL to punish Brady. The brief also takes care to vigorously defend Judge Berman, whom the NFL implied was influenced, if not star-struck, by the “celebrity” status of Brady and the NFL. Brady’s attorneys know that the three appellate judges could resent the NFL suggesting that Judge Berman, who is 72-years-old and has been a federal judge for 17 years, might be vulnerable to interpreting the law differently merely because a case features celebrity parties. Brady’s attorneys made sure to incorporate that point into the brief.

Lastly, the brief carefully details how Brady should have benefited from procedural safeguards recognized in disciplinary matters involving four New Orleans Saints players involved in Bountygate as well as matters involving Ray Rice, Adrian Peterson and Greg Hardy. For instance, in Bountygate, former NFL commissioner Paul Tagliabue recognized that it would be “inconsistent” with the CBA for the league commissioner to punish players without giving them advance notice. The reference to these other player matters highlighted how even though Article 46 is written in a way that seems to give Goodell nearly unlimited latitude, successful efforts by Kessler, Greenspan and other NFLPA attorneys have confined and constricted that latitude.

Identity of the three appellate judges remains unknown—and why that matters

As detailed in a previous SI.com legal analysis, Brady enters the appeal process clearly favored to win. Since 2000, only 8% of Judge Berman’s decisions have been reversed or vacated. This is not an unusual percentage, as the average reversal rate for judges who preside on the U.S. District Court for the Southern District of New York is also 8%. Appeals usually fail in part because the appellant—in this case the NFL—is faced with a difficult task: convincing at least two of three appellate judges that a trial judge made a mistake in applying the law.

While this general data should hearten Brady and the NFLPA, the NFL has its own reasons to feel optimistic. First, the standard of review for this type of appeal does not advantage Brady. The three-judge panel will review Judge Berman’s decision “de novo,” which means starting from new. In other words, the three-judge panel will not begin with an assumption that Judge Berman correctly applied the law and then place the onus on the NFL to convince them otherwise. The panel will instead take a fresh and open-minded look at how Judge Berman applied relevant labor and arbitration laws in concluding that Goodell upholding Brady’s four-game suspension violated the law.

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Second, the three-judge panel could be ideologically sympathetic to the NFL. As explained earlier on SI.com, there are 22 possible judges (13 active and 9 senior) on the Second Circuit who could be picked by the court clerk’s office to serve on the three-judge panel. Six very different U.S. Presidents—Jimmy Carter, Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush and Barack Obama—nominated these 22 judges. Some of the judges are considered more in line with management interests and thus could be predisposed to favor the NFL, whereas others are thought to favor the interests of labor and thus could favor Brady and the NFLPA. As a wildcard, the clerk’s office could elevate a federal district judge to serve on the three-judge panel. Regardless of which three judges are picked, the identity of the three judges won’t be known until after the NFL files a brief by Dec. 21.

The NFL will attempt to persuade these three judges that Judge Berman ignored longstanding precedent and disregarded appropriate boundaries of judicial review. As explained in a SI.com legal analysis of the NFL’s filing on Oct. 26, the NFL asserts that Judge Berman neglected to provide sufficient deference to Goodell while Goodell acted in the capacity of an arbitrator in upholding Brady’s suspension. The NFL contends that under the federal Labor Management Relations Act, the arbitrator (Goodell) only had to “plausibly interpret and apply” Article 46 of the CBA. This threshold, the NFL maintains, is extremely permissive. Therefore, in the NFL’s view, even if Goodell’s reasoning in upholding Brady’s suspension was debatable and unpersuasive, it was nonetheless adequate for purposes of the law.

Next steps and lingering possibility of a settlement

After the NFL files a reply brief by Dec. 21, the three-judges for the panel will be selected and attorneys for both sides will prepare for oral arguments on Mar. 3. The oral arguments will only involve attorneys for both sides answering questions posed by the three judges; there will be no witnesses and no examination of evidence. If Brady and Goodell attend the hearing, they will only be there to watch.

In the meantime, it is possible that an out-of-court settlement could be reached. While such a possibility seems almost far-fetched, it is not implausible. A settlement would be attractive to both sides for at least one important reason: it would provide closure and prevent the continuation of a time-consuming and distracting appeals process that could last into 2017.

Roger Goodell, NFL rolling dice by appealing Deflategate ruling

Particularly given that he is favored to win the appeal, Brady would almost certainly not agree to a settlement that carries a suspension of any length. But would he agree to pay a fine to ensure that he is not back in court next summer—which would occur if the three-judge panel remands the case back to Judge Berman? The answer might be no. After all, if Brady agrees to any settlement, his critics would contend that it is proof that he cheated. On the other hand, the prospect of lingering litigation is likely an aggravating thought for Brady. Of course, the NFL seems insistent on Brady serving a suspension, so it seems unlikely the NFL would offer Brady a deal where the league would withdraw the appeal if he pays the fine.

The most likely outcome is that the parties will litigate for months to come and Deflategate will remain the most talked about topic in the world of sports law.

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. He teaches 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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