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Tom Brady, Patriots can contest penalties in a number of ways

NFLPA executive director DeMaurice Smith (right) could appear on Tom Brady’s behalf in his appeal before commissioner Roger Goodell (left).Phil Long/AP file

The Wells Report has been released, and the NFL has handed out punishments for Tom Brady and the Patriots organization.

But Deflategate isn't over, not by a long shot. Brady and the Patriots have recourse to appeal their punishments, potentially getting them reduced or stricken altogether. If that doesn't work, Brady and the Patriots can always take matters to the real courts, with the threat of lawsuits and injunctions.

Let's take a look at the remedies available and the steps each party needs to take. Helping us parse through the legalese are Andrew Smith, a Philadelphia attorney who counts 60 current and former NFL players as clients, and Michael McCann, director of the Sports and Entertainment Law Institute at the University of New Hampshire:


 What’s next for Brady?

As spelled out in Article 46 of the collective bargaining agreement between the NFL and the NFL Players Association, Brady has a right to appeal (technically a grievance) his four-game suspension. He has three days to file his appeal from the day he is notified of his penalty, and his agent, Don Yee, has said Brady fully intends to appeal.

The appeal will be heard within 10 days of the NFL's receipt of it.

 Who hears the appeal?

This is where life gets difficult for Brady. Per Article 46, all NFL appeals are heard by either commissioner Roger Goodell or someone appointed by him. Since Goodell handed off the initial punishment to Troy Vincent, the NFL's executive vice president of football operations, it is believed that Goodell won't serve as hearing officer, as a way to recuse himself. The likeliest person to hear the appeal will be Harold Henderson, the NFL's former executive vice president of labor relations who heard Adrian Peterson's appeal.

 Is there any chance of getting a truly outside, impartial hearing officer?

Not really. The CBA spells out the process very clearly, and the NFLPA agreed to let Goodell serve as judge, jury, and executioner, so to speak, in matters of player discipline. Former commissioner Paul Tagliabue, no longer directly affiliated with the NFL, has heard certain appeals and overturned the player suspensions in the Saints' "Bountygate" case in 2012.


In an unprecedented move last fall, Goodell appointed former US District Judge Barbara Jones as the hearing officer in Ray Rice's appeal, given that Goodell admitted he messed up Rice's initial punishment (she overturned Goodell's punishment). But that was a special case.

 Who gets to be in the room?

The NFL will likely have Goodell, Vincent, and Henderson in the room, as well as Adolpho Birch, the senior vice president of labor policy and government affairs, Jeff Pash, the NFL's in-house counsel, as well as the NFL's outside counsel.

Brady is entitled to have his agent, Yee, present, as well as members of the NFLPA (potentially executive director DeMaurice Smith and assistant executive director for external affairs George Atallah), the NFLPA's attorney, and his own attorney, if he wants more than what the NFLPA would provide.

ESPN reported Tuesday that Brady will retain Jeffrey Kessler, chair of the antitrust/competition practice at New York City firm Winston & Strawn, who has successfully fought on behalf of the NFLPA for more than three decades.

Kessler was the attorney who argued the landmark case that eventually led to the creation of NFL free agency in 1993, and most recently successfully got Peterson's indefinite suspension overturned in US District Court. Kessler also represented the NFLPA in Brady v. NFL to help end the 2011 lockout, and also represented Bill Belichick in 2000 litigation over moving from the Jets to the Patriots.


 Can Brady get his suspension overturned?

Yes, but good luck. Brady's camp must argue that the punishment was "arbitrary and capricious," but the commissioner's office handed out the punishment, and the commissioner's office is handling the appeal.

There's a belief that the NFL gave Brady a four-game suspension with the idea of bumping it down to two or three games on appeal, and Smith floated the idea that if Brady agrees to take his punishment and not threaten lawsuits, then the NFL could cut his suspension.

"There's got to be some concession somewhere," Smith said of Brady's camp.

According to Article 46, "the hearing officer will render a written decision which will constitute full, final, and complete disposition of the dispute and will be binding upon the player(s), Club(s), and the parties to this Agreement with respect to that dispute."

 Does Brady have any further recourse if the NFL upholds his suspension?

Only after Brady exhausts his appeals with the NFL could he try to file for neutral arbitration with the National Labor Relations Board, arguing that the NFL's appeals processes are inherently unfair given that Goodell's office hands out the initial punishment, then decides on the appeals.

Or, more likely, Brady could threaten the NFL with a lawsuit for defamation of character, similar to what Saints linebacker Jonathan Vilma filed against the league in 2012 over Bountygate (it was tossed out of court).

Brady would face a high burden of proof to show that the NFL intentionally sought to defame his character. A lawsuit could also expose Brady to the discovery process, in which he could be forced to hand over the electronic communications he fought to protect during Ted Wells's investigation.


The NFLPA could also seek an injunction or temporary restraining order on Brady's behalf to stay the suspension until the case is heard in court. The NFLPA was successful overturning Peterson's suspension when it reached the courts.

 Could Brady possibly play in Week 1?

Given that it's only May 13, it would be tough for Brady and the NFLPA to drag the legal process out long enough to allow him to play in the opener. His only way of playing against the Steelers would likely be if the suspension is vacated altogether.

 Do the Patriots have any recourse for their penalties?

Technically, yes. NFL spokesman Greg Aiello confirmed that the Patriots have the right to appeal all four of their penalties: the loss of a 2016 first-round draft pick, the loss of a 2017 fourth-round draft pick, the $500,000 fine for violating the league's competitive balance rules, and the $500,000 fine for not cooperating with the investigation.

 Who would hear the Patriots’ appeal?

You guessed it: Goodell or one of his designees. And since this isn't a league/union matter, the Patriots would have little recourse to demand an outside party hear their appeal.

 Is an appeal likely?

Probably not. There is little to no precedent for an NFL team appealing its sanctions.

 Can the Patriots sue?

Yes, the Patriots can sue for defamation or disparate treatment based on previous rulings.

They would also face a high burden of proof. Former Raiders owner Al Davis sued the NFL multiple times in the 1990s over his desire to move his team from Los Angeles to Oakland, although Davis eventually lost all of his lawsuits.


Ben Volin can be reached at Follow him on Twitter @BenVolin.