Tom Brady is denied his appeal, so suspension stands
Patriots great Tom Brady suffered a resounding defeat in a federal appeals court Wednesday, leaving him with the daunting option of a last-ditch plea to the Supreme Court in his arduous quest to clear his name.
More than 14 months after the National Football League punished Brady for allegedly conspiring with Patriots employees, including an aide who dubbed himself The Deflator, to tamper with the air pressure of footballs in a conference championship game, the US Court of Appeals for the Second Circuit flatly rejected Brady’s appeal of his four-game suspension. Not a single judge on the 13-member panel issued a dissent.
Only an unlikely legal stay of the order will spare Brady from serving his suspension during the first four games of the Patriots season.
“There is no joy in Mudville,’’ said David Evans, a Boston attorney who supported the NFL Players Association’s defense of Brady. “His chances at this point look bleak.’’
The 38-year-old Brady is fighting not only to play every game remaining in his career but to repudiate the NFL ruling that cast him as a cheater. The four-time Super Bowl champion is expected to exhaust his options, which include first asking the circuit court that just ruled against him to delay his suspension — a near impossibility, according to legal specialists — and then appealing to the high court.
“We are disappointed with the decision denying a rehearing, as there were clear violations of our collective bargaining agreement by the NFL and Commissioner Roger Goodell,’’ players association officials said in a prepared statement. “Despite [Wednesday’s] result, the track record of this league office when it comes to matters of player discipline is bad for our game. We have a broken system that must be fixed.’’
The court’s terse ruling — “It is hereby ordered that the petition is denied’’ — significantly increases the possibility that Brady will be replaced at quarterback by the largely untested Jimmy Garoppolo in the first four Patriots games — the opener at Arizona and home games against Miami, Houston, and Buffalo.
Brady was not available to comment.
Should Brady serve the suspension to start the season, his absence could help the Patriots determine if Garoppolo, the team’s second-round draft choice in 2014, could one day succeed Brady as the franchise quarterback. Garoppolo’s NFL experience consists of limited action in low-pressure game situations.
Under NFL rules, Brady would not be allowed to appear at the Patriots facility or have any contact with the team, including the coaching staff, during his suspension. He would be docked $235,294 of his base salary. He can, however, fully practice and participate in all exhibition games.
Should the circuit court reject Brady’s request to delay his suspension, he could appeal for emergency relief to Supreme Court Justice Ruth Bader Ginsburg, who handles such requests for the Second Circuit. That prospect is fraught with implications for court watchers, both because Ginsburg is seen as a liberal supporter of labor interests, which might benefit Brady, and because she is in the midst of a highly unusual public spat with Brady’s friend, presumptive Republican presidential nominee Donald Trump.
Nonetheless, Brady’s chances of gaining a hearing before the Supreme Court are minuscule. Court records show the justices receive between 7,000 and 8,000 petitions a year and agree to consider only about 80.
What’s more, the court typically tackles weightier issues than it may perceive Brady’s to be, according to several legal authorities. Since the Supreme Court granted antitrust status to Major League Baseball in 1922, its sports-related cases almost always have addressed substantial antitrust issues involving the NFL, MLB, and the National Basketball Association.
“I know Yogi Berra said it’s not over ’til it’s over, but this is almost over,’’ said Marc Greenbaum, a Suffolk University law professor and labor arbitrator. “There wasn’t much chance of [Brady] getting a full hearing before the Second Circuit. There is even less chance of him getting relief from the Supreme Court.’’
Brady’s case no longer centers on deflated footballs, meteorological conditions that may have diminished the air pressure of the balls, or his decision to destroy his cellphone shortly before he met with investigators with the NFL. It concerns his contention that his punishment violated the collective bargaining agreement between the NFL and its players and far exceeded the appropriate penalty. He claims he deserved no more than a fine for an equipment violation.
Brady’s argument prevailed in US District Court in New York, where Judge Richard Berman last year cast the Patriots quarterback as the victim of an arbitrary, capricious, and fundamentally unfair disciplinary process administered by the NFL and Goodell.
But a three-member panel of the Second Circuit decided, 2-1, in April to overturn Berman’s ruling. The majority found that Article 46 of the NFL’s labor agreement granted Goodell wide-ranging powers to punish integrity-of-the-game matters and decide all appeals.
The lone dissenter was Chief Judge Robert Katzmann, who chastised Goodell for imposing his own brand of “industrial justice.’’
Brady and the players union responded by beefing up their legal team and asking the full appeals court to hear the case. But the odds were heavily against them: The Second Circuit has long been known for not disturbing the decisions of its three-judge panels, and only eight of more than 27,000 decisions were granted a rehearing before the full court from 2000 to 2010.
Brady needed seven of the 13 active judges to agree to a rehearing, and his legal team hoped Katzmann’s influence as the chief judge would help. But neither Brady’s arguments nor the numerous briefs filed by his supporters swayed the court.
Brady now has seven days to ask the same court to stay his suspension, which court observers consider all but hopeless. He then could ask Ginsburg for an emergency stay, arguing he would be irreparably harmed if he were unjustly forced to sit out four games of his storied career.
The stakes are high for the Patriots because if Ginsburg were to grant the stay, permitting Brady to play while he asks the full court to hear his appeal, the team could risk losing him for four games later in the season.
“You could have the Sword of Damocles hanging over the team,’’ Greenbaum said. “As bad it would be to have Brady suspended the first four games, imagine if he were suspended the last four. That would take your nightmare into ‘The Twilight Zone.’ ’’
If Ginsburg were to deny Brady’s request for an emergency stay, he still could petition the Supreme Court to hear his case, although he would have served his suspension before the court ruled on his request. At that point, Brady would be fighting mostly for his reputation and the union’s effort to prevail in its interpretation of the collective bargaining agreement.
But a victory for Brady in the Supreme Court could also benefit the Patriots, whose national image has been stained by the so-called Deflategate and Spygate affairs. The team paid a $1 million fine and forfeited two draft choices — a first-rounder this year and a fourth-rounder next year — as punishment for Deflategate.
Tracy Jan of the Globe staff contributed to this report. Bob Hohler can be reached at email@example.com.