If nothing else, the Deflategate controversy and the accompanying Tom Brady v. NFL litigation have provided drama. After Tuesday, more drama could be on the way.
In an order issued late Tuesday afternoon, U.S. Court of Appeals for the Second Circuit clerk Catherine O’Hagan Wolfe granted the NFL’s motion for an expedited briefing and argument schedule. Consequently, the NFL’s appeal of its loss in Brady v. NFL will likely take place over a period of five or six months, rather than the customary appellate period of 10 to 12 months. Wolfe’s order ensures that at least the first stage of the appeal will be resolved before the start of the 2016 NFL regular season.
Per Wolfe’s order, the NFL must now file its opening brief by Oct. 26, followed by the NFLPA filing an answer by Dec. 7 and the NFL filing a reply brief by Dec. 21. More significantly, Wolfe ordered that oral arguments for the appeal will be heard, “as early as the week of Feb. 1, 2016, subject to the approval of the presiding judge.” The unnamed “presiding judge” refers to the appellate judge who will be picked to run a three-judge appellate panel. Two other yet-to-be-named judges will round out the panel.
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The possibility that oral arguments for the appeal could occur as early as Feb. 1, 2016 is significant given that Super Bowl 50 will be played that Sunday, Feb. 7, 2016 and that Brady’s New England Patriots are—at least as of now—the most likely team from the American Football Conference to play in Super Bowl 50.
There five key points to consider.
First, the NFLPA will almost surely ask the presiding judge to schedule the oral arguments for after Feb. 7, 2016. The NFLPA could reasonably insist that Brady is the most likely quarterback from the AFC to play in Super Bowl 50 and that the scheduling of the arguments mere days before the Super Bowl could interfere with Brady’s employment and harm his career. Whether the presiding judge would grant such a request remains to be seen; much would depend on the availability of the three judges and their case schedules.
Second, Brady will not be required to attend the oral arguments or, for that matter, play any meaningful role in the appeal. The appeal is entirely about questions of law and specifically whether U.S. District Judge Richard Berman ruled correctly on Sept. 3, 2015. No witnesses will testify and no evidence will be introduced. Instead, during the oral arguments, the lead attorney for the NFL and the lead attorney for the NFLPA will each receive about 10 minutes to make his or her best case. During this time, the three judges can interrupt the attorneys and aggressively ask them questions about the law. If Brady attends this hearing, he would only be there for symbolic reasons and to show support.
That said, if the Patriots advance to Super Bowl 50 and if Brady elects to attend the oral arguments, it is plausible that he could appear at the Thurgood Marshall U.S. Courthouse on 40 Foley Square in New York City and then fly to Santa Clara, California to play in Super Bowl 50. One can only imagine the television ratings that Super Bowl 50 would attract in such a TV-show-like scenario. Then consider the possibility that Brady wins the Super Bowl Most Valuable Player Award, followed by Brady meeting up with Goodell on stage to receive the award. The awkwardness of Brady encountering Goodell on that stage could prove more memorable than the game itself.
Third, a decision by the three-judge panel would likely not occur for several weeks, if not longer, after they hear the oral arguments. Time would be needed for the judges to debate the arguments and then draft an opinion (or two opinions if one of the three judges dissents). This means that if the NFL wins the appeal and vacates Judge Berman’s order, Brady would not serve his suspension until at least the start of the 2016 regular season. It is worth noting that the odds heavily favor Brady winning the appeal: Judge Berman is only reversed or vacated 8% of the time on appeal.
Fourth, as I have explained in otherarticles, the NFL’s appeal before the three-judge panel may only be the first stage of the appellate process. It is possible, for instance, that the three judges could remand the case back to Judge Berman, who could then rule again for Brady, setting up another appeal. It is also possible that the losing party could petition for an en banc review (where the entire Second Circuit would hear an appeal) and petition the U.S. Supreme Court. Unless an out-of-court settlement is reached or unless the losing side accepts defeat before it must do so, the appellate process for Brady v. NFL could last well into 2017 or even 2018.
Fifth, there remains the slim possibility that the NFL and NFLPA could reach an out-of-court settlement prior to the oral arguments. Both sides would obtain one significant benefit in a settlement: closure. Given that Brady won at the district court level, it is almost impossible to imagine him agreeing to a settlement where he would face a suspension of any length. But it is more plausible to imagine Brady accepting a settlement where he pays a fine and only admits to not being as cooperative as he could have been. The problem in that latter scenario is that the NFL seems unwilling to make such an offer. So expect the two sides to remain in court for a while.
Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. This fall he is teaching 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.