At this point, it seems it would take the legal equivalent of a last-second Hail Mary in blinding snow for Tom Brady to avoid serving a four-game suspension for his role in the Deflategate case.
“The door’s not completely shut. But the opening is narrowing significantly,” said Martin W. Healy, chief legal counsel for the Massachusetts Bar Association.
On Monday, a panel of three judges from the US Court of Appeals for the Second Circuit in New York voted 2-1 to reinstate Brady’s suspension.
Brady’s attorneys still have options to fight the case, but it’s highly unlikely they will ultimately succeed, Healy said.
Brady’s legal team could request that the Second Circuit court grant what is called an en banc hearing, which would have all of the judges at the court hear the case, instead of just the three-judge panel.
But Healy said that en banc hearings are rarely granted. Such hearings are usually reserved for important and wide-ranging legal matters that have been in dispute repeatedly over many years.
If the request for an en banc hearing is denied, Brady’s attorney’s have one additional avenue they could pursue: filing a certiorari petition, or asking that the United States Supreme Court take up the case.
But that would seem to be an even less likely scenario.
“The Supreme Court has broad discretion to take up any legal case it decides to, but it’s usually questions of law that circuit courts around the country have struggled with for years,” said Healy.
The dispute, while undoubtedly of great interest to tens of millions of football fans, “doesn’t strike me as a topic of great import to the Supreme Court,” he said.
Healy said that if Brady’s attorneys pursue any further legal recourse, they would almost definitely request a court order that Brady not have to serve the suspension while his case is still pending. And that could mean that he would still start the season uninterrupted while the case crawls forward.
“It wouldn’t make sense for Tom Brady to be held to the punishment if the decision is still in dispute,” said Healy.
Healy said different courts have different rules governing the time frame around deciding on requests for en banc hearings or certiorari petitions, but generally, “It’s not something that’s going to happen in an expeditious fashion.”
“It could take probably another year for the matter to be decided as to whether or not an en banc matter would be heard or not, and if it’s ‘yes’ then you have a whole procedure . . . that could take another six months or a year.”
Michael McCann, a sports law analyst for Sports Illustrated who is a professor at the University of New Hampshire, said that if a court approves a request to stay the punishment until the case is resolved, Brady “might be able to play the whole season” while the matter plays out.
McCann said that the odds are not looking good for Brady, but didn’t rule out the possibility that the quarterback and his attorneys could pull off an upset victory.
“It’s certainly possible,” he said. “Factors that might favor Brady include that it was a split decision. It was 2-1 and not 3-0.”
“And, also that it was the chief judge who had the dissenting opinion,” added McCann. “This is a respected, seasoned judge with an authoritative take.”
Marc D. Greenbaum, a labor and employment professor from Suffolk University, was more skeptical. He said he doubted the courts would grant a stay of the suspension.
Greenbaum also said Brady has virtually no hope now of winning the legal battle. “The next step is to hope Jimmy Garoppolo has a good training camp,” he said.