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Michael McCann: Tom Brady has one option remaining
2:38 | NFL
Michael McCann: Tom Brady has one option remaining
Wednesday July 13th, 2016

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In an important, though expected, legal victory for the NFL, the U.S. Court of Appeals for the Second Circuit on Wednesday denied Tom Brady’s petition for a rehearing en banc. The Second Circuit’s 13 active judges found insufficient grounds to disturb a three-judge panel’s ruling in the NFL’s favor on Apr. 25. The denial brings the NFL one step closer to closure in its legal battle with Brady, whom the NFL believes was aware of an alleged—but scientifically disputed—football air pressure conspiracy surrounding the AFC Championship Game in January 2015. Absent intervention by the U.S. Supreme Court, Deflategate as a legal controversy will likely soon end and Brady will serve a four-game suspension to start the 2016 regular season.

Why the court denied Brady’s petition

The simplest explanation for the denial of Brady’s petition is that the Second Circuit almost never grants rehearings and Brady’s case is more compelling as a sports controversy than a legal one. Available data indicates that rehearing petitions in the Second Circuit are rejected more than 99% of the time. The relatively few cases that are granted rehearings tend to implicate especially consequential matters of law, such as a defendant’s civil rights in a criminal prosecution or whether a person was unlawfully arrested.

Brady’s case, though newsworthy, is of limited significance as a legal dispute. The core question presented by it is whether NFL commissioner Roger Goodell, while acting as an arbitrator, unlawfully upheld a suspension of Brady that Goodell had originally imposed. Goodell’s multifaceted role as fact-finder, punisher and arbitrator was clearly permitted by Article 46 of the collective bargaining agreement. Federal courts, moreover, are obligated to extend high deference to arbitration awards. Further, courts generally can’t review the accuracy of factual claims raised in arbitration. That means the validity of the NFL’s conjecture about the Patriots’ footballs is beyond the range of judicial review.

This dynamic left Brady with a very limited window in which to raise a viable legal theory. Brady nonetheless did so—at least for a while. He insisted that Goodell acted outside of the scope of the CBA, provided him inadequate notice of relevant rules and ignored basic requirements of consistency. District Court Judge Richard Berman and later Chief Judge Robert Katzmann agreed with Brady on those points. However, two other judges from the Second Circuit disagreed, and those two swung the three-judge appellate panel that reinstated Brady’s suspension. Judges Barrington Parker, Jr. and Denny Chin reasoned that none of Brady’s arguments overcame the fact that his union provided Goodell with nearly unlimited authority under Article 46. Although influential groups and persons, including famed arbitrator Kenneth Feinberg, authored persuasive amicus briefs on Brady’s behalf, the balance of the Second Circuit’s active judges did not find sufficient reason to disturb Judges’ Parker and Chin’s decision.

Brady’s last shot is with the highest court in the land

Brady has one remaining play in his legal battle against the NFL. He can—and almost certainly will—petition the Supreme Court. Most likely, he will petition Justice Ruth Bader Ginsburg for a stay and also petition all of the justices for a “writ of certiorari.” Procedurally, Brady would first need to petition the Second Circuit to stay the mandate of its decision. The Second Circuit would almost certainly reject Brady’s petition within a week. Assuming that rejection occurs, Brady could then petition the Supreme Court. He would have until Oct. 13 to do so. ​There are many moving pieces in a Supreme Court petition, so it is worth breaking down them down.

First, a stay issued by Justice Ginsburg would be a legal order that would effectively suspend the appeal until the judges decide whether to grant “certiorari,” agreeing to review Brady’s case. Crucially for Brady, a stay would bar the NFL from imposing its suspension until at least when the justices rule on certiorari. On average, the justices take about six weeks to decide whether to accept a writ of certiorari. Once Brady files a petition for a writ of certiorari, the NFL would have 30 days to respond, and Brady would then have 10 days to file a reply brief. Six weeks, however, is only an approximate average, and it is risky to rely on it. In some cases, the Court reviews petitions much more swiftly, whereas in others many months can pass. This is why whether Justice Ginsburg grants a stay to Brady, whose season opener is on Sept. 11, could be imperative.

As the circuit justice for the Second Circuit, Justice Ginsburg is the decision-maker for a stay petition. The circuit justice acts as a surrogate for the Supreme Court and can grant interim relief on behalf of the Court for matters arising from his or her specific circuit. Had Brady’s case occurred in a different federal circuit, a different justice would have overseen the petition.

Justice Ginsburg’s review of a stay petition will be exclusively “on paper,” meaning there will be no Supreme Court hearing with Brady or his attorneys. The Court will not hold hearings until October, but that is not important for the purposes of a stay, which would only be issued in writing directly by Justice Ginsburg. She would only review rulings from the lower courts, relevant precedent and briefs filed by Brady, the NFL and possibly third-party amicus briefs.

This wouldn’t be the first time a football player has petitioned Justice Ginsburg to issue a stay against the NFL. Twelve years ago, former Ohio State running back Maurice Clarett petitioned Justice Ginsburg for a stay after the Second Circuit reversed a district court ruling that had allowed Clarett to participate in the 2004 NFL draft (Disclosure: I served on Clarett’s legal team). Justice Ginsburg rejected Clarett’s petition, finding no cause to disturb the Second Circuit’s assessment of the case.

Justice Ginsburg faces no deadline on deciding whether to grant a stay, but it might not take her very long. In the Clarett case, she took only two days: The petition was filed on Apr. 20, 2004 and was denied on Apr. 22. Justice Ginsburg’s swift response in Clarett, however, reflected the fact that the 2004 NFL draft—which was at the heart of Clarett’s lawsuit—would take place on Apr. 24. In this case, Brady’s suspension doesn’t start until September, so Ginsburg will have more time.

If a stay is granted, and if at least four justices grant certiorari, the justices likely wouldn’t hear Brady’s case until the spring of 2017. This would mean that Brady could play through the 2016 season.

If Justice Ginsburg denies Brady’s petition for a stay, Brady could technically “renew” or resubmit his petition with another justice of his choice—and could do so multiple times until a majority of the justices denies the petition—but such an attempt would almost surely be rejected.

Brady’s strategy for convincing Justice Ginsburg to grant a stay

Unfortunately for Brady, the Supreme Court rarely grants stays or writs of certiorari. Brady’s petition to Justice Ginsburg will thus need to be extremely persuasive. He’ll raise two overarching points in his petition: that his case is worthy of the Supreme Court’s time and that if no stay is granted, he’d suffer irreparable harm.

In regards to the first point, Brady will cite Supreme Court precedent and contend, one, there is a “reasonable probability” that at least four Supreme Court justices would grant certiorari and, two, there is a “fair prospect” that at least five justices would rule for Brady. This is a very tall task for Brady. Justice Ginsburg knows that the Supreme Court denies certiorari approximately 99% of the time.

Even more discouraging for Brady, new empirical research by Adam Feldman of Empirical SCOTUS suggests that the odds of certiorari are tougher than ever—particularly since the Supreme Court currently has only eight justices (so one less justice to vote for certiorari) due to the death of Justice Antonin Scalia and the protracted confirmation process of Merrick Garland, the Chief Judge of Court of Appeals for the District of Columbia and President Obama’s nominee to replace Justice Scalia. There is no indication that the Senate will consider Judge Garland’s nomination anytime soon.

More optimistically for Brady, the quarterback can raise several points that might nudge Judge Ginsburg towards finding his case worthy of the Supreme Court’s time. For instance, Brady can assert that his case poses sweeping consequences for arbitration across the United States. This is vital for Brady to establish, since Justice Ginsburg would be much less likely to consider Brady’s case if she believes that it is merely a dispute between a star football player and a football league commissioner—in other words, a case that has no importance beyond its celebrity participants and their followers.

Along those lines, Brady can contend that Goodell’s alleged errors while serving as arbitrator were so damning that absent Supreme Court intervention, Americans would lose faith in the system of arbitration if an arbitrator’s decision can contradict evidence and yet be insulated from judicial scrutiny. Brady can also maintain that Goodell’s arbitration award reflects his own brand of “industrial justice” and did not draw its essence from the CBA. Justice Ginsburg will be aware that these arguments have resonated with at least two federal judges—Judges Berman and Katzmann—a pattern that helps to legitimize them.

Another wild card: Should Adrian Peterson defeat the NFL’s appeal in the U.S. Court of Appeals for the Eighth Circuit—it’s been 281 days since oral arguments took place in the Peterson case, so a decision should be coming soon—Brady could insist that a so-called “circuit split” exists between how two federal circuits interpret the relationship between NFL players and the CBA. Historically, a circuit split has been a powerful reason for the Supreme Court to review a case. And, although the Brady and Peterson cases are structurally dissimilar—Brady’s case is about process within an existing disciplinary policy, whereas Peterson’s case is about retroactive application of a new disciplinary policy—Brady’s legal team might be able to craft an effective argument tying the cases together.

In addition to arguing the merits of his case, Brady would highlight how his case might become moot if Justice Ginsburg denies his petition. Brady’s suspension is set to begin on Sept. 11, when the Patriots play the Arizona Cardinals in week 1 of the regular season. Once Brady misses regular season games, he’d arguably suffer so-called “irreparable harm”—harm that a court can’t later remedy. To be sure, Brady could be awarded monetary damages if he ultimately prevails over the NFL. Brady is set lose about $235,294 in lost salary over those four games (an amount of money, as sports CPA Robert Raiola points out, that is dramatically less than the $2,117,647 Brady would have been set to lose had he and the Patriots not extended his contract earlier this year).  But once he serves his suspension, those four games are gone and they obviously won’t be replayed. Further, Brady has no guarantee that the eight justices will decide on his petition for a writ of certiorari by Sept. 11. Therefore, Brady will maintain, unless Justice Ginsburg grants a stay, Brady and the Patriots’ 2016 season would be irretrievably harmed.

Brady has to hope that Justice Ginsburg might be swayed by the caliber of attorneys in this case. Two former U.S. solicitor generals who have argued many times at the Supreme Court are on opposite sides of NFL Management Council et al. v. NFL Players Association et al. (aka Brady v. NFL): Ted Olson advocates for Brady, while Paul Clement advocates for the league. Justice Ginsburg is certainly familiar with both of these attorneys and likely holds them in very high regard. These two attorneys have argued some of the most important cases in recent U.S. history. Their involvement in Brady v. NFL helps to frame the case as more meaningful than merely a sports dispute. While Olson and Clement’s involvement would not alone convince Justice Ginsburg to grant a stay, it could, on the margins, be influential.

Possible role of Justice Ginsburg’s recent remarks about Donald Trump

Justice Ginsburg recently told Adam Liptak of the New York Times that she would move to New Zealand if Donald Trump becomes President of the United States.  Although the statement appears to be tongue-in-cheek, Justice Ginsburg made other negative comments about Trump in Liptak interview, such as “I can’t imagine what the country would be with Donald Trump as our President.”

Justice Ginsburg’s remarks were surprising given that judges normally refrain from making public statements about political matters. Should any cases involving Trump ascend to the Supreme Court, Justice Ginsburg’s remarks could compel her to recuse herself. Trump would surely argue that Justice Ginsburg is biased against him and that he could not get a fair shake from her.

While Brady has not endorsed Trump for President, the Patriots quarterback has told media that the presumptive Republican nominee for President is one of his friends and that he supports “all of his friends.” It is unlikely, however, that Justice Ginsburg would feel the need to recuse herself from evaluating Brady’s petition merely on grounds that Brady and Trump are friends. Justice Ginsburg is more likely to reason that Brady’s petition has nothing to do with Trump or his friendship with Trump.

Still, Trump has been known to use Twitter in ways that are unconventional for political candidates. If Trump tweets about Justice Ginsburg’s review of Brady’s petition, Justice Ginsburg might be more likely to recuse herself. In the unlikely event that Justice Ginsburg does recuse herself from considering Brady’s petition, the Supreme Court has a mechanism in place. It is the one explained above: Brady could resubmit his petition with another justice.

Brady preserves the option to file a defamation lawsuit against the NFL

Under Massachusetts law, Brady has three years from the date of an allegedly defamatory statement to file a defamation lawsuit against the NFL. A defamation lawsuit would be an entirely separate case and would not in any way impact whether Brady serves a suspension. It would center on whether the NFL has damaged Brady’s reputation by claiming that he participated in a scheme to deflate footballs. If Brady prevailed, the NFL would owe him monetary damages.

There would be many hurdles to Brady bringing a defamation lawsuit:

1. He would have to establish that the NFL was in fact wrong about him. While many neutral scientists reject the NFL’s conclusions about the science behind Deflategate, and while the NFL has acknowledged it lacks direct proof Brady partook in a deflation conspiracy—a conspiracy which itself hasn’t been proven—Brady would need a court to agree.

2. Brady is a public figure, which means he would need to establish “actual malice,” or proof that the NFL intentionally or knowingly lied about him. This is a tall task, since the NFL could contend that even if it was wrong about Brady, it came to its conclusion through a process that exhibited good faith and reasonableness. Brady might respond that the league’s leaks of false information to media in the early days of the controversy suggest bad faith (for example, the claim that 11 of the 12 footballs tested were more than two pounds underweight).

3. Brady would also be required to turn over various pieces of evidence and would open himself up to pretrial discovery. Even if Brady has been wronged and feels aggrieved, he might not want to submit himself to potentially invasive requests by the NFL to turn over personal materials.

4. The NFL prevailed over a similar defamation lawsuit brought by Jonathan Vilma in the aftermath of Bountygate on grounds that the CBA preempted Vilma’s lawsuit. Players, the NFL successfully argued, must first bring claims through collectively bargained dispute resolution mechanisms before going to court. Brady would need to offer a more persuasive argument, and it is not readily apparent what that argument would be.

5. Some of the alleged defamatory materials about Brady—such as Goodell’s “final decision” from July 28, 2015, when he described Brady as the ringleader of Deflategate—would likely be considered exempt from a defamation lawsuit. This is because of the “judicial proceedings privilege.” This privilege normally exempts otherwise defamatory statements made in the course of a legal proceeding.

***

If you are most interested in knowing whether Brady or Jimmy Garoppolo will be starting in Week 1, the odds heavily favor Garoppolo. But as explained above, Brady has a chance, albeit a slim one, with the Supreme Court. It will likely take weeks for that chance to play out. Until then, Brady, Goodell and the rest of us will wait as Deflategate lives on.

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. McCann also created and teaches the Deflategate undergraduate course at UNH. He serves on the Board of Advisors to the Harvard Law School Systemic Justice Project and is the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He is also on the faculty of the Oregon Law Summer Sports Institute.

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