In a 2-1 decision on Monday, the U.S. Court of Appeals in New York reinstated New England Patriots quarterback Tom Brady's four-game suspension for his participation in a scheme to deflate footballs used in the 2015 AFC Championship Game. The court's decision, the dissent from one judge and the possibilities of an appeal raise questions:
Q: This decision comes as a surprise to some, but it shouldn't, right?
A: Correct. Legal analysts and scholars have long predicted this result. A basic rule of American law prevents federal judges from reconsidering rulings by arbitrators such as NFL commissioner Roger Goodell, who handled the Brady case under appointment from the league's collective bargaining agreement.
Numerous legal precedents from the U.S. Supreme Court and other reviewing courts provide that only when an arbitrator's ruling was the result of fraud or dishonesty can the ruling be reversed by a federal judge. The most famous of these precedents was a Supreme Court decision involving former Major League Baseball player Steve Garvey's attempt to recapture money he lost during the MLB owners' collusion conspiracy of the 1980s.
In discussion of their decision against Brady, the first case the judges relied on was the Garvey decision. In reviewing the bizarre ruling from an arbitrator in Garvey's case, the high court refused to reconsider the ruling even though the arbitrator's decision was "improvident, even silly." Goodell's decision, in contrast to the decision made by the Garvey arbitrator, was brilliantly reasoned, meticulously detailed, and well written. In their review of Goodell's decision that Brady had participated in the deflation of the Patriots' footballs, the judges concluded that Goodell "had properly exercised his broad discretion" and that it was not their "role to second guess" his rulings.
Q: But there was at least one judge who said Brady was correct, right?
A: Yes. Judge Robert Katzmann, a highly regarded jurist, dissented, saying, "I am troubled by the commissioner's decision to uphold the unprecedented four-game suspension. The commissioner failed to even consider a highly relevant alternative penalty."
Q: What does this decision mean for the NFL and Brady?
A: It is total vindication for the NFL, for Goodell and for Goodell's top lawyer, Jeff Pash. They knew when U.S. District Judge Richard Berman ruled against them in September that Berman was wrong. They filed their appeal on the same day as Berman's ruling instead of using a 30-day appeal period to consider the situation and the possibilities. The quick filing was a remarkable break from usual lawyer protocol that would have meant a few weeks of thought and deliberation. It showed supreme confidence in the league's position. Berman's ruling was inexplicable, and the league and the lawyers knew it. For Brady, Monday's decision could be a humiliating end to a long process that he likely could have settled months ago with an agreement to a shorter suspension.
Q: What recourse do Brady and the NFL Players Association have?
A: Brady, the NFLPA and his lawyers have two options for appeal. Although the dissent Monday by Katzmann gives Brady some support for these appeals, neither is likely to succeed.
The first avenue of appeal would be a request for a rehearing in the U.S. Court of Appeals for the 2nd Circuit before a much larger panel of the circuit's 22 judges. It is known as an en banc hearing. Jeffrey Kessler, Brady's top lawyer, is likely to ask for this. Four judges have now considered and made decisions on the Brady case. They include Berman, the two judges in the majority on Monday (Barrington D. Parker and Denny Chin), and Katzmann. The total score is now 2-2, a result that could push Brady to ask for an en banc hearing. In addition, Katzmann, the dissenting judge, is the chief judge of the court and could easily find other judges on the court who would agree to the reconsideration. But it should be noted that in a similar situation, Ed O'Bannon, the former UCLA basketball star who sued the NCAA, relied on a dissent by a chief judge in the Court of Appeals for the 9th Circuit in his request for an en banc hearing and was unsuccessful.
The other possible appeal is an appeal to the U.S. Supreme Court. Brady would join hundreds of litigants who want the high court to consider their cases. The court accepts only 60 to 65 cases per year, and Brady's case is not likely to be one of them. The rule of law that protects arbitration decisions from review in the federal courts is a fundamental and widely accepted rule of law. It is unlikely that Brady could persuade the required four of the current eight justices of the court to consider his situation.
Q: What about the severity of the four-game suspension, the flaws in the league-initiated Wells report and the other difficulties that Brady highlighted in the trial before Berman's ruling and during Brady's appeal?
A: Although Berman was convinced that Brady was the victim of a deeply flawed investigative process, previous rulings on the use of evidence in the arbitration hearing and the determination of a punishment, none of it mattered in the appellate court. The court simply ruled Monday that Berman went beyond his authority in reviewing these problems. The majority relied on the basic rule of law that Berman was not entitled to second-guess Goodell the arbitrator, concluding that none of the various claims of error from Brady was enough to reverse Berman's decision.