There aren’t many quarterbacks better at protecting a lead than Tom Brady. He'll hope that his attorneys share that same talent on Thursday, when the NFL’s appeal of U.S. District Judge Richard Berman’s Deflategate ruling is heard in New York.
Three judges on the U.S. Court of Appeals for the Second Circuit will hear concise and intense arguments that will influence whether Brady sits out the first four games of the 2016 regular season. Judges Robert Katzmann, Barrington Parker, Jr. and Denny Chin comprise the three-judge panel tasked with deciding NFL Management Council et al. v. NFL Players Association et al.
How Thursday’s hearing will work
Thursday’s hearing is only one step in the NFL’s appeal of Judge Berman’s order on Sept. 3, 2015 to vacate Roger Goodell’s arbitration award. Goodell’s “final decision” or award, dated July 28, 2015, upheld Goodell’s May 11, 2015 suspension of Brady for four games due to Brady’s alleged role in a football deflation scheme. Several weeks ago, the Second Circuit’s Clerks Office sent written materials on the NFL's appeal to Judges Katzmann, Parker and Chin. Those materials included three lengthy legal briefs (two written by the NFL and one by the NFLPA), a transcript of the hearings before Judge Berman last August and all of the documents Judge Berman considered in reaching a decision.
Since receiving these materials, the three judges and their law clerks have made themselves very familiar with the key legal arguments. The judges have undoubtedly identified related weaknesses and strengths in both sides’ theories and lines of reasoning. As a result, the judges will be well prepared to ask difficult questions on Thursday.
Thursday’s hearing is the “oral argument” for the NFL’s appeal. The NFL is the “appellant,” meaning the party making the appeal. Four attorneys—Paul Clement, Erin Murphy, Michael McGinley and Daniel Nash—will represent the NFL. Only one of them will argue for the league. Clement, a former U.S. Solicitor General, will have that duty. He will have just 15 minutes to make the league’s case that Judge Berman unlawfully vacated Goodell’s arbitration award. During this time, the three judges can interrupt Clement at any moment. They can ask him simple questions for clarification or pose complicated, multi-part queries. The judges can ask Clement many questions—which sometimes gives rise to the moniker “hot bench”—or none. Clement must answer any and all questions, thereby potentially “eating up” his time to address the NFL’s core legal arguments. This dynamic can be a source of great frustration for an appellate attorney: already pressed for time, the attorney may be forced to devote much of that time to politely and thoroughly addressing questions.
After Clement’s time expires, he will sit down. An attorney for the NFLPA, as the “appellee,” will then stand and have 15 minutes to make the players’ association case. There are four attorneys who will represent the NFLPA at Thursday’s hearing. They are Jeffrey Kessler, David Greenspan, Steffen Johnson and Andrew Tulomello. Kessler, who successfully argued for Brady before Judge Berman, will deliver the NFLPA’s oral argument. As with Clement, the three judges can interrupt Kessler at any time.
While 30 minutes total of oral arguments may seem remarkably short for such a high-profile case, this is actually more allotted time than normal: in the Second Circuit, usually 20 minutes or less are set aside for both sides. Judges Katzmann, Parker and Chin have discretion to extend the two attorneys’ time. Any extension would likely be in the range of five to 15 minutes, although occasionally extensions exceed 30 minutes. This means that Thursday’s hearing could extend past 4 p.m., though more likely will finish up earlier. One reason for such brief oral arguments is that the judges have already studied the written materials. Seasoned appellate attorneys believe that judges often make up their minds before oral arguments.
Neither Brady nor Goodell is expected to attend Thursday’s hearing. This is not surprising: neither would have any role to play there. The hearing will only consist of the two short oral arguments. No one will testify and no evidence will be considered.
One more note about the hearing itself: Federal hearings are conducted without cameras, so Thursday’s hearing won’t be on TV and photographs won’t be available, either. Social media will also barred, so no live tweeting. Audio of the hearing, however, will be available for purchase after the hearing ends.
Meet the judges and attorneys
Last week I profiled Judges Katzmann, Parker and Chin and examined their reviews of appeals of arbitration decisions and Judge Berman’s decisions. The takeaway is that they form a three-judge panel that appears favorable for Brady.
Arguing on behalf of the NFL and NFLPA will be two superstar attorneys. As noted above, Paul Clement will argue for the NFL. He is one of the nation’s foremost appellate litigators and has extensive experience arguing before the U.S. Supreme Court and federal courts of appeal. Legal observers often describe Clement as extraordinarily gifted and able to persuasively explain crucial and complex distinctions in understandable ways. The 49-year-old graduate of Harvard Law School and Georgetown University is often thought of in legal circles as a possible nominee for the U.S. Supreme Court should a Republican nominee win the Presidency.
Clement is perhaps most known for unsuccessfully arguing against the Patient Protection and Affordable Care Act (Obamacare) in National Federation of Independent Business v. Sebelius (2012), where in a 5–4 decision the Supreme Court ruled that Congress mandating individuals to buy healthcare is a lawful expression of Congress’ constitutional power to tax. Clement is also known in sports law. In 2011 he successfully argued in the U.S. Court of Appeals for the Eighth Circuit on behalf of the NFL in its lockout litigation against Brady and other NFL players. Clement also advised the NBA of legal strategies in its 2011 lockout.
Arguing for the NFLPA will be Jeffrey Kessler, who successfully argued on Brady’s behalf last August. Kessler is perhaps the leading sports attorney in the U.S. There is no one more knowledgeable about the interaction of sports and labor law than the 62-year-old Kessler, who is a graduate of Columbia Law School and Columbia University. Kessler has litigated numerous times on behalf of NFL, NBA, NHL and MLB players against their respective leagues and has often won. For instance, he won Freeman McNeil v. NFL, a case that led to free agency for NFL players. Kessler has also been on a roll of late against the NFL. He has successfully represented Brady, Adrian Peterson, Ray Rice, Greg Hardy and four New Orleans Saints players in matters against the NFL.
A key advantage for Kessler on Thursday will be his deep knowledge about both NFL policies and the case law that connects to those policies. Along those lines, Kessler represented Brady and other NFL players in the 2011 lockout litigation. During that case, famed appellate attorney Ted Olson—rather than Kessler—argued for the players at the U.S. Court of Appeals for the Eighth Circuit. Olson lost to Clement, who advocated for the NFL, in that case. This time around Kessler isn’t handing off the ball to anyone. He’s going for the win.
NFL’s core legal argument
The NFL will have one overarching objective in Thursday’s hearing: convince at least two of Judges Katzmann, Parker and Chin that Judge Berman mistakenly vacated Goodell’s arbitration award. To achieve that objective, Clement will insist that Judge Berman ignored commands from both federal law and case precedent that, in the NFL’s view, required Judge Berman to uphold Goodell’s award.
In its written briefs, the league highlights Section 301 of the Labor Management Relations Act. Courts have interpreted Section 301 to signify that federal judges are greatly constrained in reviewing arbitration awards. Along those lines, cases cited by the NFL indicate that federal judges are obligated to enforce an arbitrator’s award so long as the arbitrator (here Goodell) “plausibly interpreted and applied” the relevant contractual provision.
The contractual provision at issue in the NFL’s appeal is Article 46 of the collective bargaining agreement (“CBA”). The league and the NFLPA, of which Brady is a member, signed the CBA in 2011. Article 46 of the CBA empowers Goodell to fine or suspend to a player who engages in “conduct detrimental to the integrity of, or public confidence in, the game of professional football.” The operative words and phrases—“conduct detrimental”; “integrity”; and “public confidence”—are, as the NFL stresses, intentionally imprecise. It is up to Goodell’s “reasonable judgment” to assess and define these words and phrases in individual situations.
Implicit in the league’s appellate argument is that Goodell need not have been factually or normatively correct when suspending Brady for four games and, subsequently, when upholding that suspension. The league insists that the legal question is simply whether Goodell applied Article 46 in a plausible way. To bolster that point, look for Clement to highlight how the NFLPA freely assented to Goodell’s sweeping authority to handle player disciplinary matters, including by empowering Goodell with wide latitude to draw conclusions from investigations. This far-reaching power is designed, the NFL underscores, to guarantee that Goodell can protect the so-called “integrity of the game.”
Clement will assert that Goodell utilized two main sources of information to reach his views. He first drew conclusions from the Wells Report, which was published on May 6, 2015. Goodell, the NFL maintains, was later informed by his impressions of Brady during Brady’s hearing on June 23, 2015. To be sure, there are various reasons to believe the Wells Report was deeply flawed, particularly in its scientific conclusions and in its assessment of evidence. Also, Brady testified under oath—under risk of perjury charges—during the June 23 hearing. In doing so, Brady categorically denied any involvement or knowledge in a ball deflation scheme. But from the NFL’s vantage point, those points do not alter the underlying legal calculus: Goodell didn’t have to be “right” in his decisions to suspend Brady and to uphold that suspension; Goodell only needed to satisfy the very low bar of reasonable judgment.
Aiding the NFL in its appeal is the standard of review. Judges Katzmann, Parker and Chin will review Judge Berman’s decision “de novo,” which means anew and not with deference. This standard would allow the three-judge panel to consider the same record as Judge Berman and reach the opposite conclusion. As I explained last week, however, Judge Berman is reversed in only 8% of appeals and Judges Katzmann, Parker and Chin have only reversed Judge Berman at a 12% rate (slightly higher if you add in partial affirmations/partial reversals). Judge Berman is also highly regarded as fair and as ideologically neutral. Moreover, as a 72-year-old judge with 18 years on the bench, Berman will likely be accorded significant respect from Judges Katzmann, Parker and Chin.
NFLPA’s core legal argument
While the NFL must show that Judge Berman got it wrong, the NFLPA must demonstrate that Judge Berman got it right. Above all, Kessler will portray Goodell as having treated Brady so unfairly that Judge Berman had no choice but to vacate Goodell’s arbitration award.
To further this objective, Kessler will frequently remind Judges Katzmann, Parker and Chin of the three core legal defects identified by Judge Berman. The first was the NFL failing to adequately inform Brady that he would face a four-game suspension for alleged involvement in a ball deflation scheme. The second was Goodell’s refusal to allow Brady an opportunity to cross-examine NFL general counsel Jeffrey Pash, who was co-lead investigator with Wells. The third was Goodell’s refusal to allow Brady access to witness interview notes and other investigative materials.
Crucially, Kessler will maintain that any one of the three defects highlighted by Judge Berman constituted sufficient grounds to vacate Goodell. Along those lines, Kessler might say or imply that even if the appellate judges disagree with Judge Berman on one or two of the defects, so long as they support at least one of the three, they should at least partially affirm Judge Berman’s order. A partial affirmance would likely mean that Judge Berman’s order to vacate Goodell’s arbitration award stands and that Brady’s suspension remains sidelined, although the scope of the holding—and impact on the NFL in future player disputes—would be narrowed.
To bolster Judge Berman’s finding of three process defects, watch for Kessler to assert that Goodell disregarded collectively bargained policies that authorize fines—not suspensions—for football tampering and for uncooperative behavior. This, in turn, supposedly caused Goodell to commit further procedural errors: Brady could not have been on notice that he would face a four-game suspension for alleged football tampering or failure to cooperate when no rule authorized such punishment and no player in the league’s history had suffered such a penalty. These alleged errors are important for Kessler to establish since under the so-called “law of the shop,” an arbitrator must supply fair notice of punishments and must also exhibit consistency in formulating punishments. Kessler is also poised to insist that Goodell denied Brady basic procedural safeguards that were established in previous player disciplinary actions. For instance, in the Bountygate matter, Goodell was reprimanded for failing to provide notice of punishment to four Saints players.
The science of Deflategate is not up for courtroom debate
You may have noticed that the legal arguments for Thursday’s hearing do not involve whether the Patriots and Brady actually hatched a football deflation plot prior to the 2015 AFC Championship Game—the very core of the Deflategate scandal. While the Wells Report concluded that such a plot probably occurred, various commentaries and analyses reject such a finding as incompatible with basic tenets of science. For instance, Massachusetts Institute of Technology Professor John Leonard categorically rejects the NFL’s theories about ball deflation and finds that the ball pressure readings are fully consistent with Ideal Gas Law. Leonard’s findings have been confirmed by others in the scientific community, a point I detail in my SI.com article “Deflategate, one year later: The anatomy of a failed controversy.” Some legal observers, moreover, assert that questions about science should have played a more prominent role in Brady’s case. In an amicus brief, New York Law School professor Robert Blecker argues that the alleged “pseudo-science” of Exponent (the engineering and scientific consulting firm retained by Ted Wells) so significantly jeopardized the “integrity” of football that no federal judge could have rationally accepted the NFL’s findings.
While these views are important in understanding Deflategate as a controversy, they do not fit neatly into the slim contours of the NFL’s appeal. The appeal centers not on what actually happened but on whether Goodell, while acting as the arbitrator, lawfully applied rules. This should be a source of concern for all who support the Patriots. The three-judge panel could fully doubt that the Patriots and Brady partook in any plot and yet still find that Goodell acted in accordance with Article 46 when upholding Brady’s four-game suspension.
The Patriots loss of draft picks is also not up for courtroom debate
The NFL severely punished the Patriots for Deflategate. The league took away the team’s first-round pick in the 2016 NFL Draft and fourth-round pick in the 2017 NFL Draft, plus doled out a $1 million fine. This penalty has drawn rebuke from many around the NFL as either unfounded or grossly excessive. Last week on the MMQB, Peter King wrote a compelling argument that the NFL should restore the Patriots' draft picks. Some have suggested the Patriots should sue the NFL over the loss of draft picks—a strategy that, as I have written about, would almost certainly fail. More recently, the Patriots’ penalty has become the subject of a consumer complaint filed by Massachusetts resident Jim Derochea with the Office of Massachusetts Attorney General Maura Healey. Derochea’s complaint, which as of this writing has been signed by an impressive 6,600 people, contends that by unfairly damaging the Patriots franchise, the NFL has unlawfully harmed consumers of Patriots products.
The NFL’s penalty of the Patriots is not at issue in the federal appeal. The Patriots, in fact, are technically an adverse party to Brady in the appeal. As a litigant, the NFL represents itself and its 32 franchises.
Do not expect a decision for months . . .
No decision will be made on Thursday. In fact, it will likely be several months before the three-judge panel issues a decision. Typically about 10-to-14 months pass between the filing of a notice of appeal and a decision on the appeal. The NFL filed a notice of appeal in Sept. 2015, meaning the three-judge panel might not issue a decision until the summer or even the fall. This raises the possibility of a scenario that Bill Belichick, Brady and Patriots fans won’t want to hear: Brady could be quarterbacking the Patriots well into the 2016 regular season and then the three-judge panel could issue a decision in the NFL’s favor. The NFL could then force Brady to sit out four games in the middle or end of the 2016 regular season, thereby altering the Patriots season and playoff hopes.
Neither the NFL nor NFLPA wants the appeal to leak into the 2016 season. Last fall the NFL sought, with the NFLPA’s blessing, an expedited appeal. The Second Circuit granted the expedited appeal, but “expedited” in the context of a federal appeal does not mean instantaneous. It means the date for the NFL and NFLPA’s oral arguments is in March instead of the spring or summer. This makes it more likely that a decision will be made during the summer than in the fall, but there is no guarantee of that occurring. While Judge Katzmann, Parker and Chin are presumably aware of the 2016 regular season beginning in September, they have many other cases to review. These three judges won’t feel rushed to decide on the NFL’s appeal merely to appease the NFL, Brady, fans, media and the sports betting community.
. . . but the hearing may provide clues on the decision
Occasionally appellate judges signal which way they are leaning by the substance and tone of their questions. If a judge seems confused by an attorney or appears unconvinced by an answer, it suggests the judge perceives a defect in the attorney’s reasoning. Similarly indicative is when a judge repeatedly poses hypothetical questions to one of the attorneys. That might reveal an attempt by the judge to “trap” the attorney into admitting that there is a gap in his or her logic. A judge might also test an attorney’s familiarity of precedent cited in the written briefs and evaluate whether the attorney understands the implications of that citation as it relates to the appeal at hand. Appellate attorneys usually have a good read on whether they will win or lose based on a judge’s behavior during oral arguments.
That said, some appellate judges say little or nothing during hearings. Some rarely ask questions. Other appellate judges are talkative but not always in transparent ways. For instance, some judges like to play the role of “Devil’s Advocate” where they pose difficult questions to an attorney as a method of confirming in their minds that they do in fact agree with the attorney. There is thus some risk in reading too much into what takes place during Thursday’s hearing.
The three-judge panel’s decision may not be the last word
It may sound hard to believe, but the litigation over Brady’s four-game suspension could extend long beyond a decision by the three-judge panel.
The three-judge panel could rule in a way that calls for another hearing before Judge Berman. One such possibility would occur if the panel agrees with the NFL that Judge Berman misapplied but the law but also finds that further hearings before Judge Berman are necessary. In this scenario, the three-judge panel would reverse Judge Berman’s order and remand the case back to him with new instructions. This would compel Judge Berman to schedule additional hearings. Brady and Goodell would likely be obligated to attend those hearings, just as they were obligated to attend the hearings last August.
If Judge Berman is instructed to rehear the case, it is possible that he would consider three claims by Brady that the judge explicitly declined to rule on last September. First, Brady argued that Goodell was “evidently partial” by delegating his authority to Troy Vincent. Second, Brady insisted that Goodell unlawfully made conclusions—including that Brady rewarded Jim McNally and John Jastremski with gifts—that were not contained in any investigative or disciplinary documents. Third, Brady charged that Goodell, by praising the Wells Report prior to serving as an arbitrator in Brady’s appeal, prevented the three-time MVP from receiving a fair hearing. Should Judge Berman again hear Brady v. NFL, one or all of those claims could serve as the basis to again rule for Brady. By doing so, Judge Berman would allow the NFL to once again appeal to the U.S. Court of Appeals for the Second Circuit.
More likely, the three-judge panel will either affirm Judge Berman’s Sept. 3 2015 order or reverse it. In such a scenario, the “loser” could petition the Second Circuit for what’s known as an “en banc “ rehearing. In it, other appellate judges on the Second Circuit review the matter. En banc rehearings in the Second Circuit are extraordinarily rare. Available data suggests that petitions for en banc rehearings are granted at a rate well under 1%. A majority of the Second Circuit’s active judges must approve such a rehearing and almost never do.
With an en banc rehearing unlikely to rescue either side, the losing party could then turn to the U.S. Supreme Court. As a first move, the losing part might directly petition U.S. Supreme Court Justice Ruth Bader Ginsburg, the Justice assigned to consider emergency appeals from the Second Circuit. The party would ask Justice Ginsburg to intervene on an emergency ground given that the 2016 season might soon be approaching or perhaps have already started. It is extremely unlikely Justice Ginsburg would find such a topic—the eligibility of an NFL player to play in four games—worthy of the Court’s emergency intervention. For what it’s worth, Justice Ginsburg declined a similar emergency request by former Ohio State football player Maurice Clarett in 2004 after a three-judge panel on the Second Circuit ruled against him in his case against the NFL’s age eligibility rule.
The losing side would then petition the Supreme Court for a writ of certiorari. This is a much longer process, and also one unlikely to succeed. The Supreme Court grants only about 1% of petitions and typically for reasons unlike those implicated in the Brady case. The Brady case, while important to sports fans, is not especially important in terms of its impact on large segments of the population. In fact, the oddity of Goodell serving as both the punisher and the arbitrator presents a fact-pattern unlikely to play out elsewhere in labor relations.
The most compelling justification for the Supreme Court to grant cert is when there is a so-called “circuit split,” meaning two or more U.S. Courts of Appeals have come to conflicting decisions in similar cases. Such a split is theoretically possible in this litigation. Namely, if the U.S. Court of Appeals for the Second Circuit and U.S. Court of Appeals for the Eighth Circuit reach conflicting decisions in the Brady and Peterson cases, a split might surface. But even if it does, the Brady and Peterson cases are probably different enough for the Supreme Court to conclude that it doesn’t need to reconcile them. While both cases involve issues of notice and procedure, Peterson’s case centers on whether the NFL unlawfully applied a domestic violence policy in a retroactive way. In contrast, Brady’s case is about whether the NFL unreasonably found fault and misapplied equipment rules.
Instead of continued litigation into 2017, it is also possible the NFL could drop the case or reach a settlement with the NFLPA and Brady. Neither scenario, however, seems likely with both sides so dug in. Watch for Brady and the NFL to remain in court for a while. Neither Brady nor Goodell is going anywhere anytime soon. With Brady’s new two-year contract extension, Brady and Goodell are both under contract into 2019. For their sake, let’s hope they’re not still in court by then.
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 and is on the faculty of the Oregon Law Summer Sports Institute