Thursday February 25th, 2016

On Thursday, the Clerk’s Office for the U.S. Court of Appeals for the Second Circuit revealed the three-judge panel who will decide NFL Management Council et al. v. NFL Players Association et al.—better known as the NFL’s appeal of Tom Brady’s victory in the Deflategate case. The three judges are Robert Katzmann, Barrington Parker, Jr. and Denny Chin.

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Neither the NFL nor Brady had any role in the selection of these judges. Before the start of the court’s term last year, Katzmann, the Second Circuit’s chief judge, selected three-judge panels to hear appeals. Selection was based on pragmatic factors such as judges’ available time to review appeals and draft decisions, and whether judges previously served together on panels. Selection was not based on whether judges would be inclined to favor one side or another in potential appeals.

Judges Katzmann, Parker and Chin and their law clerks have been reviewing litigation materials for the NFL’s appeal for several weeks. Per court rules, their identities couldn’t be disclosed until noon today—the Thursday of the week before the panel sits.

The role of these three judges in the NFL’s appeal

At 2 p.m. next Thursday, attorneys for the NFL and NFLPA will meet in courtroom 1703 in New York City’s Thurgood Marshall U.S. Courthouse. Before them will be Judges Katzmann, Parker and Chin. The three judges will listen to dueling 15-minute oral arguments by one attorney for each side. During this hearing, which might last less than hour, the three judges will ask the attorneys difficult questions about how the law applies to their dispute. Only a handful of people—the three judges, a court clerk and the lead attorneys for the NFL and NFLPA—are expected to speak during the hearing.

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The focus of next Thursday’s hearing will not be on Brady, Goodell or the science of ball inflation. It will instead be on whether U.S. District Judge Richard Berman correctly reasoned that Goodell’s order to uphold Brady’s four-game suspension violated the law. No witnesses will testify, meaning that if Brady and Goodell are there, they’ll only be spectators. Likewise, no evidence will be examined, so, no, PSI levels won’t be studied. The hearing will entirely be about Judge Berman’s interpretation of the law.

In the weeks and months ahead, Judges Katzmann, Parker and Chin will internally discuss and the debate the dueling arguments. At the judges’ discretion—perhaps in the late spring or early summer—they will vote on the NFL’s appeal and write a corresponding opinion or opinions. The vote will either be 3–0 or 2–1 in one side’s favor; if the vote is 2–1, there will be a dissenting opinion.

The risky predictions game in federal appeals and why that matters

Most people reading this article are looking for insight on whether Brady or the NFL should be happy or disappointed with the three judges picked to hear the appeal. Before I attempt to lend such insight, I should stress that predicting the outcome of a case based on the presiding judge is an extremely speculative venture. Each case is different and each contains unique qualities that could matter a lot or a little to a judge. Federal judges—who have lifetime appointments—are also not as predictable as politicians and other government officials. A so-called “conservative” judge might occasionally rule in “liberal” ways or vice-versa and suffer no job security repercussions by doing so. Also, unlike many political debates, there often isn’t an obvious “conservative” or “liberal” perspective in a private legal dispute. Federal judges call it like they see it, and they aren’t beholden to ideological or partisan labels, so it might not matter whether a Republican or Democratic president nominated the judges.  

Additionally, how each judge ruled in similar cases might not accurately reflect how each will rule here. While the Brady case bears a resemblance to other cases involving judicial review of arbitration awards, those cases involved neutral or independent arbitrators. By virtue of both his position as NFL commissioner and as the issuer of Brady’s four-game suspension, Goodell could have not have been neutral or independent in serving as the arbitrator for Brady’s appeal. The Brady case is also unique in that while the NFL clearly has sweeping authority to punish players for misconduct, the league’s system of rules for alleged violations of equipment matters and how those matters are to be adjudicated are far less clear.

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Predicting how Judges Katzmann, Parker and Chin might rule should also be viewed in the context of the track record of appeals for Judge Berman’s decisions. As I explained in a previous SI.com article, Judge Berman’s decisions usually withstand appeals. Available data indicates that the Second Circuit has reversed or vacated Judge Berman only 8% of the time. While this data is encouraging for Brady, it obviously does not mean that Brady has a 92% of winning. As explained above, every case has different facts, histories and ideas. The NFL, moreover, has retained top appellate attorneys, including Paul Clement and Erin Murphy. Plus, Judges Katzmann, Parker and Chin will review the case “de novo” meaning from a fresh perspective and not with deference to Judge Berman.

Scouting reports on the three judges

With those important qualifiers in mind, it is time to explore the backgrounds of the three judges and look for clues on how they might rule in the Brady case.

Remember, Brady convinced Judge Berman that Goodell’s handling of Brady’s appeal was so flawed that it obligated Judge Berman to vacate Goodell’s order. It was an extraordinary ruling. As the NFL has correctly insisted, federal judges are obligated to provide high deference to arbitration awards, meaning arbitration awards should only be vacated in truly exceptional circumstances. Will at least two of Judges Katzmann, Parker and Chin agree with Judge Berman that such exceptional circumstances existed for Brady?

As a starting point, the three appellate judges generally seem to support Judge Berman’s legal reasoning. Through Westlaw’s top-notch judicial reversal report service, I found that Judges Katzmann, Parker and Chin collectively heard 57 appeals of Judge Berman’s decisions between 2000 and 2015. Keep in mind, the three judges were members of other three-judge panels in reviewing these decisions and the appellate issues in each case mainly involved areas of law unrelated to Brady’s case, such as criminal law and constitutional law. With those caveats in mind, the three judges reversed or vacated Judge Berman in 7 of those appeals—12% of the time—and partially reversed/partially affirmed him in 6 appeals or 11%. More favorably viewed, Judges Katzmann, Parker and Chin have affirmed Judge Berman in approximately three out of every four appeals. That is favorable data for Brady.

Below is my brief scouting report on each judge and what we might expect.

Chief Judge Robert Katzmann: A 62-year-old graduate of Yale Law School and Harvard University, Katzmann was nominated by President Bill Clinton in 1999 and confirmed by the Senate through a voice vote. Judge Katzmann, a native of New York City, is highly regarded and well respected by judges from across the ideological spectrum. He has received numerous distinctions and awards over the last decade and a half. Judge Katzmann is an expert on administrative law, disability law and access to legal services, among other fields. He is also an accomplished author. He authored the Oxford University Press book Judging Statutes, which encourages judges to consider legislative materials while interpreting statutes (as a disclosure I am the editor-in-chief of a forthcoming Oxford University Press book, The Handbook of American Sports Law).

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Analysis of Judge Katzmann’s record indicates that he is somewhat to the left of center ideologically. In theory, this should help Brady as it suggests that Katzmann might favor the interests of labor over management. For more insight, consider The Judicial Common Space, which is a study by Washington University law professor Lee Epstein and her co-authors. The study, which was originally published in 2007 and has been updated as recently as 2015, attempts to empirically measure a judge’s ideology based on their decisions—think of it as Moneyball meets judging. According to the study, a judge with a score of 0.0 is considered to have a centrist ideology, while the further into negative scores the more a judge is considered liberal and the further into positive scores the more a judge is considered conservative. The study assigns Katzmann a score of -0.3. To give -0.3 some context, conservative U.S. Supreme Court Justices Clarence Thomas and Samuel Alito have scores of 0.6 and 0.5, respectively, while liberal U.S. Supreme Court Justices Sonia Sotomayor and Ruth Bader Ginsburg each has a score of -0.5.

In at least one case, Judge Katzmann ruled in a way that should lend optimism to Brady. In New York Telephone Company v. Communications Workers of America (2001), Judge Katzmann joined two other judges in affirming a federal district judge’s order to vacate an arbitration award. The award was a matter of dispute between union and management—the same type of scenario at play when Judge Berman ruled against the NFL last September. The three judges agreed that the arbitrator had failed to follow important rules contained in a collective bargaining agreement and case precedent and thus the award was invalid. There was one difference in the New York Telephone Company case from the Brady case: management, rather than labor, sought the vacating of the arbitration award.

Judge Barrington Parker, Jr.: A 71-year-old graduate of Yale Law School and Yale University, Parker was originally nominated by President Clinton in 1994 to become a U.S. District Judge and was confirmed by the Senate. After Parker served as a district judge for seven years, President George W. Bush made the unusual move of nominating Parker, a judge picked by a President from the other political party, to a higher position—U.S. Court of Appeals Judge. The Senate confirmed Parker with a vote of 100–0.

Judge Parker, a native of Washington D.C., is viewed as somewhat to the right of center ideologically. His Judicial Common Space score indicates that he is conservative, with a score of 0.5. Yet that "conservative" label might not be predictive in regards to Judge Parker's review of arbitration awards. In an encouraging ruling for Brady, Judge Parker agreed with a district court judge in Applied Industrial Materials Corp. v. Ovalar Makine Ticaret Ve Sanayi (2007) that an arbitrator had acted with “evident partiality.” Brady highlighted this case in his legal filings because it involved an arbitrator who refused to recuse himself in spite of a conflict of interest—the same core critique Brady has leveled against Goodell. Brady’s attorney, Jeffrey Kessler, also successfully argued the Applied Industrial Materials case. That's all good news for Brady.

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But in Sotheby’s International Realty v. Relocation Group (2013), Judge Parker, along with two other judges, reversed a district court judge’s decision to vacate an arbitration award on grounds that the district judge had failed to exhibit sufficient deference to the arbitrator. Also, perhaps troubling to Brady, in Hoeft III v. MVL Group, Inc. (2003), Judge Parker joined two other judges in reversing a district court judge’s decision to vacate an arbitration award. Judge Parker rejected the district court judge’s conclusion that the arbitrator had exceeded permissible authority.

Judge Parker’s record is decidedly mixed as it relates to how he might rule on the NFL’s appeal.

Judge Denny Chin: A 61-year-old graduate of Fordham Law School and Princeton University, Judge Chin was originally nominated by President Clinton in 1994 to serve as a U.S. District Judge (he was confirmed) and in 2010 President Obama nominated Chin to serve on the Second Circuit (he was confirmed by a 98–0 vote). Judge Chin, who was born in Hong Kong, has presided over a number of historically significant cases, most notably the 2009 trial of Ponzi schemer Bernie Madoff. Like Judge Katzmann, Chin’s ideology is viewed as somewhat to the left of center, with a score of -0.3 in the Judicial Common Space study. Prior to becoming a judge, Judge Chin practiced labor law extensively and thus is likely to be very familiar with the issues presented in the Brady case.

Judge Chin’s rulings on arbitration awards indicate a willingness to uphold earlier review by district court judges and to affirm arbitration awards. For instance, in A&G Coal Corp., Meg-Lynn Land Co. v. Integrity Coal Sales, Inc. (2014), Judge Chin joined two other judges in affirming a district court’s ruling to uphold an arbitration award. In that decision, the three-judge panel stressed that an arbitrator’s fact-finding is “essentially unreviewable.” This is perhaps an encouraging sign for the NFL, which stresses that Goodell’s fact-finding into allegations of under-inflated footballs, even if flawed—and critics would say contrary to science—was nonetheless permissible under the law. Judge Chin also joined in affirming district court orders to uphold arbitration awards in GMAC Real Estate v. Julius Fialkiewicz, Jr. (2012) and in Adriano Giannetti Dedini Ometto v. ASA Bioenergy Holding A.G (2014). The latter ruling featured Judge Chin joining Judge Parker in finding that even though the arbitrator may have been “careless” it was not so egregious as to warrant vacating the arbitration award.

Bottom line: The track records for these three judges are by no means conclusive. That said, they seem willing to tolerate flawed arbitrators, but only up to a degree. Also, Judges Katzmann and Chin seem willing to uphold district court decisions on arbitration awards. On balance this reflects positive news for Brady, but by no means does it lend assurance that he will win. If next Thursday’s hearing were an NFL game, one might predict a close score with Brady prevailing.

Next week on SI.com: a detailed preview of Thursday’s hearing and live coverage from the hearing.

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 also created and teaches the Deflategate undergraduate course at UNH, serves as the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law is on the faculty of the Oregon Law Summer Sports Institute.

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