When will the Second Circuit Court hand down a decision on Brady vs. NFL? And if they rule for the NFL, could the suspension disappear anyway? Plus, notes on the concussion settlement, and the rarity of restricted free agents
The hearing at the Second Circuit Court of Appeals two weeks ago stood in stark contrast to the Brady-friendly atmosphere of Judge Richard Berman this summer. Now, we await a decision in the latest chapter of NFL v. Brady.
As I wrote in Peter King’s column last week, this Court honed in on facts harmful to Brady and were quite curt with Brady attorney Jeffrey Kessler, labeling his argument “hypertechnical” and cutting him off while being otherwise liberal with time restrictions. The judges spoke of deference to the arbitrator (Goodell). And, in a most damning exchange, Judge Chin, spoke of “compelling” evidence of ball tampering, certainly past the threshold for Goodell to find as he did.
As we wait for the outcome here, let’s go “inside the chambers” of the Second Circuit as it determines Tom Brady’s fate.
Judge Katzmann, the Chief Judge of the Second Circuit who was on the Brady panel, had sittings in other cases the day before, the morning of, and the day after the Brady argument. Statistics show that each appellate judge in the Second Circuit issued, on average, 180 written opinions during 2015. This a busy court with judges juggling multiple cases and priorities far beyond Deflategate.
Typically with Second Circuit cases, the panel will meet and take a preliminary vote immediately following the oral argument. Thus, the judges know now—and knew within a day or two after hearing the arguments—how they are going to rule. Depending on how the vote turns out, the senior-most judge in the majority (Katzmann, if he is in the majority) assigns the opinion to himself or to one of his panel colleagues. If the decision is not unanimous, a concurring or dissenting judge will announce that he is writing separately. At that point, the opinion author will work with his clerks—in many cases, the clerks will write the first draft—to prepare the draft opinion and circulate it to the other panel members for comment. If one of the judges intends to concur or dissent, that concurring or dissenting opinion will be circulated to the rest of the panel after the majority opinion is circulated. If at least two judges sign on to the majority opinion, it will be published. As to timing with what Katzmann referred to as an “expeditious” court, I expect a decision by the end of April.
Judges and their law clerks are human and read the news like the rest of us. Having said that, the record in this case consists only of what was available to Judge Berman: the Wells Report, Troy Vincent’s letter meting out punishment, the transcript of Brady’s appeal before Goodell, the appeal ruling, Judge Berman’s decision, the parties’ appeal briefs, and a transcript of the oral argument in front of them. Media reports, such as Sally Jenkins’ article in the Washington Post questioning NFL lawyer Paul Clement’s characterization of the evidence, or scientific articles such as the one by MIT professor John Leonard, are outside of the record and unlikely to have any effect. As for amicus—“friend of the court”—briefs, they are part of the record and may be considered, but there’s no obligation on part of judges to take them into consideration (and most do not).
Finally, it’s important to note that the standard of review here is De Novo (latin term for “starting at the beginning”). Thus, the judges can basically ignore Judge Berman’s interpretation of the facts—as it seemed they did in the hearing—and draw their own conclusions. This was the case with Judge Chin's comment that “the evidence of ball tampering is compelling,” a statement diametrically opposed to Berman’s view of the case.
What will happen?
I predict—with the usual disclaimer about not reading too much into the hearing—that there will be a 2-1 decision in favor of the NFL. Judge Katzmann showed some skepticism with the NFL’s argument, so I will put him on the Brady side of the ledger. However, Judges Parker and Chin seemed squarely on the NFL’s side.
With this decision, the Court could directly reinstate the suspension or remand (send back) to Berman with specific instructions. Brady would retain appeal rights, however, to (1) petition for a rehearing in front of the same panel of judges and then to the entire group of Second circuit judges, and (2) a potential appeal to the U.S. Supreme Court. In all cases, Brady would request a stay of his suspension while on appeal. Thus, this long-running series could continue for many more months or even years.
Beyond the appeals, there is a question of whether the NFL would demand Brady’s suspension. The league’s primary legal strategy has been to protect CBA precedent and prevent players and lawyers running to court after adverse discipline from Goodell. When I asked someone very senior in the league about whether Brady’s suspension would necessarily be enforced, he said “I assume so, but I am not certain.”
If the NFL is in the position of having litigated back their CBA power and precedent, my sense is they would be open to compromise with Brady. It has even been suggested in recent reports that a compromise could include an overall revision of the disciplinary system with Goodell ceding his appeal power. As to that, good luck; I just don’t see Goodell and the NFL giving that up without extracting a major pound of flesh. But, of course, we are getting ahead of ourselves. Let’s first see how this chapter, NFL v. Brady, appellate division, will end.
The Concussion Case
Moving from the Second Circuit Court of Appeals to the Third Circuit Court of Appeals in the NFL Concussion case...
The NFL’s lead voice on player health and safety, Jeff Miller, made quite an admission on Monday at a congressional roundtable on Monday, an admission the NFL has avoided through diversion and obfuscation for years. When pressed to answer whether there was a link between football and CTE—in a “yes or no” manner—Miller replied “certainly, yes,” later explaining that the key is what to do with that information. The admission came six weeks after Dr. Mitch Berger, one of the NFL’s leading experts in this area, refused to admit any link to CTE at a Super Bowl press conference on health and safety.
Miller’s answer is surprising less for its content and more for representing a change in the NFL’s reluctance and resistance to admit this link. Dr. Ann McKee has found the presence of the disease in 90 of the 94 brains examined (although it is important to note that the donated brains are a skewed sample of many players suffering at the end of their lives). Miller, who is always prepared and has been the NFL’s point person trotted out to discuss its safety advances in various forums and settings, had to know a question such as this was coming, so perhaps this represents a more open and honest NFL in dealing with the issue.
Moving to the legal front, having covered the NFL concussion litigation for six years, the omission of CTE coverage has been notable throughout. The settlement received final approval from trial court judge Anita Brody last April, with only a relative handful of objectors voicing their concerns at oral arguments to the Third Circuit last November. After years of litigation (the NFL’s trial lawyer here was, you guessed it, Paul Clement, the same lawyer from the Brady case) and settlement negotiations, the plaintiffs’ lawyers, the NFL lawyers and Judge Brody all bought into the argument that since there is no living diagnosis for CTE, it is not a compensable disease, although there can be coverage of some of its symptoms—depression, dementia, etc.—in other compensable diseases.
Without final resolution from the Third Circuit, the question becomes: Will Miller’s admission affect the appellate court’s decision regarding the settlement? The objectors and their lawyers certainly feel that way, and there have been filings to the Court immediately from them. The NFL immediately responded, with a letter from Clement with a curious note that Miller's comments were consistent with past positions of the league and that nothing should change.
My sense is that yes, the admission gives the objectors a ray of hope, but from a legal perspective, it will likely have no effect. Just as statements and reports outside the court record will have little effect on the Brady appeal, the same is likely true here. Miller’s comment was an out-of-court statement, “hearsay” in the court setting, which is new evidence beyond the court record. The objectors may argue that the comment may fit the “public records and reports” exception to hearsay since it was before a Congressional committee, but the Court's focus will be on “the record” in front of them, primarily the hearing in front of Judge Brody in November. NFL owners certainly hope this will be the case.
Assuming final approval of this settlement, the CTE issue becomes a political and societal one more than a legal one. The NFL will likely avoid billions of dollars in exposure on the legal front (and the lawyers on both sides will be well compensated) but the league must deal with the continuing fallout of a broader and more general question: How to make an inherently violent game safe and without future consequence to its participants? Much more to come here in the weeks ahead.
Restricted Free Agency
And a note on the not-dead-yet (but almost) Restricted Free Agents...
The contracts signed this week by RFAs C.J. Anderson (with Denver matching Miami’s offer sheet) and Chris Hogan (moving from Buffalo to New England) show that although the category of Restricted Free Agency is becoming extinct, it is not dead yet. There is, however, a catch. Players such as Anderson and Hogan are only RFAs able to leverage these contracts due to how they came into the league, as longshot undrafted players. Let’s examine.
The 2011 CBA not only reduced rookie compensation, especially at the top, but further restricted young players by (1) preventing any contract renegotiations prior to a player’s fourth season in the NFL, and (2) mandating that all contracts for drafted players have one length and one length only: four years. The latter restriction has all but extinguished the category of restricted free agency, for players who have completed three years in the NFL and have an expiring contract. Any drafted rookie worth his salt is going to be under contract to his team in his fourth year when he would otherwise be eligible for restricted free agency. Sure, there may be a drafted outlier who washed out with one team and managed to do a short contract with another but, as a practical matter, drafted players have been eliminated from Restricted Free Agency.
Undrafted players, unlike drafted players, can sign three-year deals, opening up the RFA category for the bottom rung of the entering player pool. Now Anderson and Hogan have used their original long-shot status to get something drafted rookies in their class cannot. For management, the extinction of the RFA category for drafted rookies is another CBA gift that keeps on giving.