Tom Brady and the NFL Players Association were certainly dealt a crippling blow Monday with the ruling to reinstate his four-game suspension by the US Court of Appeals for the Second Circuit.
But a quarterback who knows a thing or two about overcoming long odds isn’t done just yet. Brady still has Hail Mary legal plays at his disposal, and while he hasn’t revealed his intentions, there’s little reason for Brady not to exhaust every legal avenue to fight his punishment.
“It has always been Tom’s call to how far he wants to take this. We stand by him,” NFLPA spokesman George Atallah said Tuesday on WEEI. “I don’t think this is over. I really don’t.
“We have a long way to go to fight this. Worst-case scenario is we’ve exposed a really, really screwed-up process for the most popular game in the world.”
The clock is ticking for Brady to make a decision. He has 14 days from the ruling to file an “en banc” petition for the entire Second Circuit to hear an appeal. Atallah indicated that Brady and the legal team will use most of that allotted time “to make the best and smartest decision.”
In the en banc scenario, all 13 active judges — but not the eight senior judges — will review the NFLPA’s petition and determine whether to grant Brady a hearing. Seven of the 13 judges would have to agree that Monday’s decision was flawed. Among the 13 judges would be Denny Chin, who voted in favor of the NFL, and Chief Justice Robert Katzmann, who provided the dissenting opinion. So, realistically, Brady has to convince 6 of 11 judges of the worthiness of his appeal.
Sports law expert Daniel Wallach of Becker & Poliakoff said an en banc hearing can be granted for two reasons — to settle conflict among the circuit judges or if the case is of exceptional importance.
But the odds of getting one heard are minuscule. According to Wallach’s research, only eight of 27,856 appeals in the Second Circuit were granted an en banc hearing between 2000-2010, or less than .03 percent, although not every appeal files for en banc.
“It’s the equivalent of judicial Powerball,” Wallach said.
New York-based legal expert Jason Bonk of Cozen O’Connor said that the Second Circuit is “notorious” for not accepting en banc petitions. In fact, Katzmann wrote in a 2008 decision that the Second Circuit has “longstanding tradition of general deference to panel adjudication” and “proceeded to a full hearing en banc only in rare and exceptional circumstances.”
It’s probably hard to argue that a case about deflated footballs is of “exceptional importance,” but the intra-circuit conflict angle may have some merit and could be a significant portion of NFLPA attorney Jeffrey Kessler’s argument. The overall judicial scoreboard does read 2 to 2 — Barrington Parker and Chin on the NFL’s side, and Richard Berman and Katzmann on the Brady/NFLPA side.
And the fact that one of the dissenters is Katzmann, the chief justice of the entire Second Circuit, could hold some weight with other judges.
“The chief judge dissented, and that always has an impact,” Bonk said. “I don’t know the appetite of the entire bench to agree to hear the petition, but Brady’s team could look at this as an opportunity, and you never know.”
Also, this lawsuit has defied odds at every level — arbitration rulings are rarely overturned by the courts (but this one was by Berman), and federal court rulings are rarely overturned on appeal (but this one was).
If Brady does complete the Hail Mary and get his en banc hearing, the NFL and the NFLPA will once again return to federal court in New York City and present their arguments. This time, instead of a three-judge panel, it will be in front of 14 — the 13 active judges, plus Parker, since he was on the original panel. A majority decision is needed to overturn the decision and once again vacate Brady’s suspension, with Brady already starting in a 2-1 hole.
Brady’s suspension would be temporarily stayed if he gets his en banc hearing, meaning it’s possible that he could play this fall if the hearing were still tied up in the courts. But given the expeditious nature of both the initial lawsuit and the appeal, an en banc hearing could be completed before the Patriots begin the regular season Sept. 11 at Arizona.
The judges should return their decision on whether to hear the en banc petition within 4-6 weeks of receiving it from Brady’s legal team, the actual hearing will likely be in June or July, and a decision could come down in August.
“That can all be done in four months,” Wallach said.
But in the greater likelihood that Brady is not granted an en banc appeal, he still has three more options, though all are similarly long shots:
■ He has 90 days to file a petition to the US Supreme Court to hear his appeal. But the prospects of the Supreme Court hearing a case about deflated footballs and NFL/NFLPA power balance are minuscule, as they don’t have much broader societal value.
■ Before he even files his petition to the Supreme Court, Brady can appeal to the Second Circuit to stay his suspension until the petition is heard by the Supreme Court because of the irreparable harm done by missing regular-season games. This would at least allow Brady to keep playing, possibly through the entire 2016 season.
■ Finally, Brady can hope for some sort of settlement with the NFL to reduce his penalty. It’s at least in the realm of possibility that the NFL is worried about losing an en banc hearing, and could want the certainty of a settlement and a confession from Brady in exchange for shaving, say, two games off the suspension. Or Roger Goodell’s heart can turn to gold and he can take a couple of games off after putting Brady through the wringer for the last 16 months.
But a settlement is unlikely, for many reasons. The NFL has been stubborn about refusing to compromise with Brady, even when it was dealing from a position of relative weakness in front of Berman last summer. Now the NFL has all the cards, with a four-game suspension and dominant victory in hand and Brady having only a few long-shot legal avenues left.
And Brady has fought adamantly about his innocence throughout Deflategate, and taking two games off his suspension likely isn’t worth disappointing his fans and hurting his reputation with a confession.
“Why take any sort of suspension now, when he has nothing to lose by taking this all the way to the end of the line?” Wallach said.