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Time for Brady’s Hail Mary Deflategate legal defense

Tom Brady still faces a four-game suspension for Deflategate — at least until he exhausts all available legal options. Maddie Meyer/Getty Images/file 2016

The time to put Tom Brady’s Hail Mary Deflategate legal defense into play is here. And the Patriots’ quarterback, facing a four-game suspension, continues to add heavyweights to his legal team.

The deadline is Monday for Brady to appeal the decision to reinstate his suspension by the US Court of Appeals for the Second Circuit, two weeks after the Second Circuit granted him a 14-day extension. While Brady and his legal team have not publicly stated whether they will appeal the 2-1 decision to reverse federal judge Richard Berman and reinstate the punishment, Brady has little reason not to exhaust every legal remedy available to him.


Brady’s lawyers will almost certainly file for an “en banc” rehearing, in which all 13 active judges in the Second Circuit would decide whether to hear another appeal. The other option is for Brady to file for a panel rehearing, in which the same three judges from before would rehear the case, but that option seems unlikely.

A three-judge panel of the Second Circuit ruled April 25 that the four-game punishment handed down by NFL commissioner Roger Goodell took its essence from Article 46 of the collective bargaining agreement between the NFL and NFL Players Association, and reinstated the suspension that Berman had vacated last September.

If there were any doubts about Brady’s intentions to continue the fight, one need only look at recent additions to his lineup of lawyers. NFLPA outside counsel Jeffrey Kessler, who has fought Brady’s legal fight from the beginning, will now step aside for two of the most impressive litigators in the country.

Former US solicitor general Theodore Olson — who in his career has worked on federal cases including Iran Contra, Bush v. Gore, and same-sex marriage in California — joined the team on April 29, four days after the decision. Olson now works for Gibson Dunn in Washington, D.C., and represented the NFLPA in the 2011 NFL lockout.


And on Friday, Team Brady added more legal firepower: Thomas H. Dupree Jr., a partner at Gibson Dunn in the appellate and constitutional law practice group. Dupree served in the Justice Department from 2007 to 2009, reaching the position of principal deputy assistant attorney general in 2009, “responsible for managing many of the government’s most significant cases involving regulatory, commercial, constitutional, and national security matters on behalf of virtually all of the federal agencies, the White House, and senior federal officials,” according to his Gibson Dunn bio.

Dupree seems like one of the best possible options to represent Brady in a long-shot appeal. Dupree “has argued more than 70 appeals in the federal courts, including in all 13 circuits as well as the United States Supreme Court.” Dupree was Olson’s partner in Bush v. Gore, persuaded the Supreme Court to reverse a $290 million punitive damages award against a major automobile manufacturer, and successfully represented clients such as Mark Zuckerberg, Jerry and Jessica Seinfeld, and baseball agent Scott Boras.

Olson and Dupree will square off against the NFL’s own heavyweight, Paul Clement, who like Olson is a former US solicitor general. Clement was retained by the NFL for the previous appeal and successfully argued the case.

After Brady’s legal team files to request an en banc rehearing Monday, it would then need seven of the 13 judges to decide that further scrutiny is warranted on the decision by Second Circuit judges Barrington Parker and Denny Chin to reinstate Brady’s suspension. Brady would then need to convince eight out of 14 judges in the actual en banc rehearing. Because Parker is a senior judge, he will be excluded from the initial decision, but he would get a seat at an en banc rehearing because he was on the original panel.


The Second Circuit is notorious for respecting the decisions of its three-judge panels, and the odds of Brady even getting a hearing appear slim. Only eight of more than 27,000 cases were granted an en banc hearing in the Second Circuit between 2000 and 2010. Parker and Chin ruled in favor of the NFL, while Robert Katzmann, the chief judge of the entire Second Circuit, ruled in favor of Brady, which could hold some sway among the other 12 judges.

In order to convince the judges that the case deserves further scrutiny, Brady’s lawyers need to convince them that this decision carries significant, wide-ranging implications and is of extraordinary circumstances.

In the court filing on April 29 asking for a two-week extension to file an appeal, Brady’s lawyers highlighted that “the Court’s opinion will affect the rights of every player in the NFL.”

They also made sure to note that “the Court’s decision raises significant labor law issues that could have far-reaching consequences for all employees subject to collective bargaining agreements . . . These aspects of the Court’s opinion are of great importance not only to NFL players, but to all unionized employees.”


A decision on whether to hold an en banc rehearing should come within four to six weeks. Should Brady complete the Hail Mary and receive the rehearing, his four-game suspension will be stayed until the legal process is complete. Brady could potentially play the entire 2016 season, although the original lawsuit and appeal both operated on an expedited schedule, and there are still 3½ months until the start of the NFL regular season.

If Brady’s request is denied, he still has a few long-shot remedies to try to delay his suspension. He would probably file a petition with the Supreme Court and ask the Second Circuit to stay his suspension until the Supreme Court decides whether to hear the case.

If the Second Circuit declines, Brady could then ask the Supreme Court to stay his suspension until it decides whether or not to hear his case. Instead of asking all nine (or eight, current) justices, he would present his case to the Supreme Court justice assigned to the Second Circuit, currently Justice Ruth Bader Ginsburg.

Ben Volin can be reached at ben.volin@globe.com. Follow him on Twitter @BenVolin.