(Tom Brady photos courtesy of the New England Patriots)
By Clark Judge
Talk of Fame Network
With the Second U.S. Court of Appeals ruling Monday that New England quarterback Tom Brady must serve a league-imposed four-game suspension, we’re left to wonder: What’s next and where do Brady, the Patriots and we go from here? For an answer, I turned to a valued and trusted source — legal expert Geoffrey Rapp, associate dean for academic affairs and Harold A. Anderson professor of law and values at the University of Toledo’s College of Law. This is what I discovered:
Q: If you were representing Tom Brady, what are your options? And would you pursue them?
RAPP: Brady can take some solace in the fact that this was a split decision by the panel – which is to say one judge (and the Chief Judge of the Circuit, no less) would have found for him. That, plus Judge Berman’s forceful and memorable opinion, means that even if the case ends here, there will always be some sense that neither side “won.” That’s most important to Brady, I suspect, in that it reduces the tarnish of DeflateGate and this suspension on his legacy.
At this point, his legal options include asking the Supreme Court to review the case, asking the 2nd Circuit to consider it as a whole (as opposed to via a three-judge panel) or seeking to settle with the NFL for something less than a four-game suspension. Because the Supreme Court hears very few cases and the 2nd Circuit rarely grants a petition for rehearing en banc, he’d be facing an uphill battle on either front. It’s unlikely in either case that a stay of his suspension would be granted in time for this coming season. So even if he successfully gets another hearing, he may already have served his time and might even be retired.
My thought is that he either accepts the suspension and moves on or tries to bargain with the NFL to some lesser “sentence” in exchange for giving up his appellate options. For the league, this might now be an attractive option. The victory today means the league has “won” and proved its point – though it may very well give up the process contested here, it has at least retained the option of demanding some concession from the NFLPA at the bargaining table in exchange. The league might decide that enough is enough and, with its moral victory, a fine or shorter sentence would be more acceptable now. So if I were Brady’s attorneys, I would be reaching out to the league counsel to try to restart settlement discussions.
Q: After what we heard from Judge Berman last summer, are you surprised by Monday’s finding?
RAPP: It’s hard to be completely surprised. Judge Berman’s decision was an aggressive one. I described it as a total defeat for the NFL in part because he found in the NFLPA’s favor in nearly every area of contest. The truth in litigation is often somewhere in between the parties’ positions. So when a lower court goes so far to one side, an appellate reversal is not a surprise. This also wasn’t a case where Judge Berman’s decision was based heavily on his interpretation of the facts, which would be the kind of thing as to which an appellate court would tend to be deferential. He was interpreting the meaning of some very broad legal principles – like notice and fundamental fairness – and the appellate court did not hesitate in disagreeing with his interpretation.
Q: It seems this was more about the commissioner’s right to suspend Brady than it was about guilt or innocence. True or false?
RAPP: True. The decision is really about the power of parties to a CBA to reach agreement on how to govern their own affairs. Here, though unusual and strange, the commissioner’s role in arbitration is something the court today viewed as part of the contemplated agreement between the league and the NFLPA. The court has no need to resolve Brady’s guilt or innocence to find that the CBA allowed the kind of process employed here.
Q: What, do you believe, are the Second Circuit Court’s chances of acting on a petition to rehear the case “en banc” and why should we believe its response – if granted – would be any different?
RAPP: I think it is unlikely that the 2nd Circuit will agree to take the case en banc., The Circuit has a tradition of granting such hearing only in “rare and exceptional circumstances” (according to Chief Judge Katzmann, who dissented in the Brady case). In a typical year, the Circuit may only hear a single case en banc. The two reasons why en-banc review would be granted, under the federal rules, are to ensure uniformity among three-judge panels or because of a matter of exceptional importance. The facts of the Brady dispute are simply so unique and peculiar that is it us unlikely other federal appellate panels in the Circuit will confront the same issues again, and the matter, while something the parties were willing to spend millions to litigate, is not the kind of issue that courts consider of exceptional importance. It’s not a hot-button social issue like affirmative action or abortion. So I’m very skeptical an en-banc review will be granted. Even if it were granted, there’s no guarantee of a different result.