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On Thursday, New York City’s 2nd Circuit Court of Appeals hears arguments from the NFL and NFLPA in regards to Tom Brady’s dismissed suspension. Here’s what to expect

By Andrew Brandt
March 03, 2016

Today marks another historic day in Courtroom Football, a (perhaps) final chapter in the litigation novel featuring Tom Brady and the NFL. Brady is no stranger to litigation battles with the league; he was the named plaintiff in the lockout case in 2011 (eventually settled) and, of course, brought suit this past summer in a New York Federal District Court (chosen by the NFL) and successfully reversed his four-game suspension, which is the subject of today’s appeal by the NFL.

Many have asked me “Why is the NFL continuing to push this? Why don’t they just give up on this already?” I get the question, but I also understand why the NFL is in court today. It is pursuing an unpopular case for the same reasons the NFLPA has pressed cases for people such as Aaron Hernandez (return of signing bonus) or Greg Hardy (reduced suspension). In law (and business), it is usually not the individual case that is most important; it is about precedent and protecting established labor principles for the next case that comes up.

The NFL is intent on reversing the decision made by Judge Berman, and the stakes are far bigger than Tom Brady. At issue is Roger Goodell’s cherished Commissioner power, emanating from the Collective Bargaining Agreement, that has defined his tenure, and the catchall disciplinary powers for integrity and “conduct detrimental.” Let’s examine today’s proceedings, for which I will be on hand to cover.

• ROGER GOODELL, 10 YEARS LATER: A look at the policies that have defined his tenure, and why, despite a rocky public perception, he has staying power.

The Schedule

Today’s proceedings—in the 2nd Circuit Court of Appeals in New York City—will include allotted time of 15 minutes for each side to make their arguments, including rebuttals. While a tight time frame, I noted that there are no other cases on the court’s schedule this afternoon. Thus, my sense is that the judges will be very liberal with time, allowing more—perhaps much more—than scheduled. I would expect the hearing to take over an hour.

The NFL—the appellant—will go first and last, finishing with a rebuttal whenever the NFLPA (representing Brady) finishes their presentation.

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The Advocates

The NFL, for whom cost has never been a concern, has brought in the best lawyer money can buy: Paul Clement. Clement is as prominent an appellate lawyer as there is in the country, and has argued in front of the United State Supreme Court 80 times, the second-most of any lawyer. He has swooped in for the NFL before, successfully arguing to maintain the 2011 lockout and advocating for the NFL in concussion litigation in 2013.

The NFLPA continues to ride Jeffrey Kessler who, of course, successfully argued this case in front of Judge Berman. Kessler’s frenetic style will contrast sharply with the unruffled demeanor of Clement.

Other NFL and NFLPA lawyers will be present, including lawyers from NFL labor counsel Akin, Gump as well as associates from Clement’s and Kessler’s firms. Although they could always show up, my strong sense is that neither Tom Brady nor Roger Goodell will attend.

The Judges

It is notable that the Chief Judge for the Second Circuit, Robert Katzmann, is on the panel. My sense is that is not a coincidence; he knew the amount of eyeballs on this case and wanted to hear it. If it means anything—and I am not sure it does—President Clinton appointed Katzmann, while the other two judges on this panel, Barrington Parker and Denny Chin, were appointed by Presidents Bush and Obama, respectively. The two appointments by more liberal presidents could suggest a pro-Brady, anti-corporate stance, but all predictions like this are be purely speculative. The tone and frequency of questioning from them could prove to be a much better indicator of a potential result.

The Arguments

Although their arguments proved unsuccessful in the lower court, the NFL will hammer away at the sanctity of the CBA arbitration process, a process, they will argue, that did not receive proper deference from Judge Berman and one sanctioned in a sports context in the Major League Baseball Players Association v. Garvey case in the U.S. Supreme Court. Clement will argue (1) The CBA includes longstanding Commissioner powers to discipline for “conduct detrimental”; (2) the Brady discipline was about just that, “conduct detrimental” and “integrity of the game,” and came not from the Personal Conduct Policy nor from any equipment rules; and (3) Brady had the rights of any player under the CBA, including a lengthy appeal. The NFL’s argument all along—which Clement will continue—is that Brady is a disappointed loser in an established arbitration process. Clement will attack Judge Berman as improperly inserting himself in the facts of the case, overstepping his role of deference to the arbitrator’s fact-finding.

In sharp contrast, Kessler will praise Judge Berman for seeing the inherent bias and unfairness in the Goodell-led arbitration process with Brady. Kessler will continue to emphasize the facts of the case that are not a good look for the NFL (faulty air pressure gauges, NFL review of the Wells Report, etc). It will be up to the appellate judges to decide whether these facts are relevant to their decision, as Berman did, or irrelevant, as the NFL will argue. Kessler will continue to frame Brady’s transgression as an equipment violation that drew egregious overpunishment, a characterization the NFL strongly disagrees with.

• BARGAIN-BIN BRADY: Last fall, Andrew Brandt examined the curious case of Tom Brady, the NFL’s most underpaid player.

What could happen?

Kessler will argue that even if the Court of Appeals sides with the NFL, the most they should do is send the case back to the Brady-friendly Judge Berman for further consideration (Berman noted in his opinion that he did not need to address all of the issues once he reversed the suspension). That result, however unlikely, is one neither side would like very much (which may be a good thing). The other two potential—and more decisive—outcomes are the Court could (1) rule for the NFL, either confirming Brady’s four-game suspension themselves or ordering Judge Berman to do so; or (2) uphold Judge Berman’s reversing of Brady’s suspension, leaving the NFL a two-time loser and chipping away at the cherished power of the Commissioner. Of course, the league could then appeal to the U.S. Supreme Court, which, having time and money to do so, would not be a surprise.

Expect a decision from today’s hearing within a couple of months; the NFL, in its appeal, noted the importance of a decision before next season. As to predicting what decision will be: good luck with that. I should have a better sense after hearing the questioning from today’s judges about whether they are more empathetic with the lower court judge (Berman) or the original arbitrator (Goodell). Stay tuned.

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