The fight over Deflategate isn’t over yet.
Tom Brady’s legal team, now headed by former US Solicitor General Theodore Olson, has filed an en banc appeal to the US Court of Appeals for the Second Circuit on Monday, asking the court to review its decision to reinstate Brady’s four-game suspension for his role in Deflategate.
“The divided panel of the Second Circuit reached erroneous legal conclusions under an unfair and unjust standard,” said Olson in a statement released by the NFL Players Association. “The decision and the standards it imposes are damaging and unfair -- not only to Tom Brady -- but to all parties to collective bargaining agreements everywhere. Commissioner Goodell cannot sit as an appellate arbitrator and then affirm the league’s initial disciplinary decision based upon a new theory and imagined evidence and pretend to be an unbiased decision-maker.”
The appeal will now be reviewed by all 13 active judges in the Second Circuit, and Brady will need at least seven judges to agree that Brady’s appeal has merit and the case deserves to be heard in front of the entire roster of active judges. The judges usually take 4-6 weeks to determine whether to hear an en banc appeal.
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.
Among the 13 judges who will review the appeal are chief judge Robert Katzmann and Denny Chin, two of the three judges who heard the NFL’s appeal of federal judge Richard Berman’s decision on March 3. Chin and judge Barrington Parker ruled last month to overturn Berman and reinstate Brady’s suspension, while Katzmann dissented and stated that Berman acted properly in vacating Brady’s punishment last September.
Assuming Katzmann and Chin remain consistent with their rulings, Brady’s legal team will need to convince six of the remaining 11 judges that their case deserves to be reviewed again.
The odds of getting an en banc hearing granted are extremely low. Between 2000-10, only eight of 27,856 appeals in the Second Circuit, or less than .03 percent, were granted an en banc hearing, although not every appeal filed for en banc.
The Second Circuit is also notorious for not accepting en banc appeals and respecting the decisions of its three-judge panels. The Second Circuit has a “longstanding tradition of general deference to panel adjudication” and “proceeded to a full hearing en banc only in rare and exceptional circumstances,” Katzmann wrote in a 2008 decision.
Berman ruled last year that NFL commissioner Roger Goodell overstepped his bounds in handing Brady a four-game suspension, vacating the punishment and allowing Brady to play the entire 2015 season.
But the NFL appealed that decision, and Chin and Parker ruled in favor of the NFL, stating that Goodell “properly exercised his broad discretion under the collective bargaining agreement” to punish Brady, and that “his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness.”
“Our role is not to determine for ourselves whether Brady participated in a scheme to deflate footballs or whether the suspension imposed by the Commissioner should have been for three games or five games or none at all,” the judges wrote. “Nor is it our role to second-guess the arbitrator’s procedural rulings. Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act.”