Bloomberg Law
May 23, 2016, 10:12 PM

Brady’s Lawyers File Longshot Appeal of “Deflategate” Suspension

Lenore Adkins
Lenore Adkins
Bloomberg Law

In what several analysts described as a legal ‘Hail Mary,’ NFL quarterback Tom Brady has asked the full U.S. Court of Appeals for the Second Circuit to overturn his four-game suspension.

The NFL imposed Brady’s suspension in 2015 after concluding he used deflated footballs during that year’s AFC championship game, which makes it easier to throw accurate passes.

But the NFL Players Association appealed the ruling in federal court in 2015 and a district judge overturned the punishment, as Bloomberg previously r eported . The NFL then appealed that ruling at the Second Circuit, which reinstated Brady’s suspension in April by a 2-1 vote.

Now Brady is asking the 13 active judges on the 2nd Circuit to hear the case, en banc — the term for when all judges on a court, rather than a selected panel, hear and decide a case.

“I think the odds of completing a Hail Mary are probably higher than the odds of having this case reheard,” Gabriel Feldman, director of the Sports Law Program at Tulane University Law School, told Big Law Business.

The Second Circuit only accepts en banc petitions in very extraordinary circumstances, he said.

Feldman pointed to data from the Boston Globe finding that between 2000 and 2010, the Second Circuit only heard eight out of more than 27,000 en banc petitions.

He said Brady has some criteria for an appeal: Chief Judge Robert Katzmann issued a strong dissent in the panel’s appellate decision that reinstated Brady’s suspension.

His lawyers are requesting a rehearing by the full court, on claims that NFL Commissioner Roger Goodell, who handed down the punishment while serving as arbitrator on the case, violated the terms of a collective bargaining agreement with players. Their en banc petition accuses Goodell of falsely portraying the investigation into Brady’s conduct as independent. From the petition :

Goodell’s biased, agenda-driven, and self-approving “appeal” ruling must be vacated. Although his arbitral authority was contractually limited to hearing appeals of disciplinary decisions, Goodell upheld Brady’s punishment based on different grounds that were not the basis for his original disciplinary decision. In doing so, Goodell did not even mention or discuss the collectively bargained penalties for equipment-related violations—the very misconduct he alleged.

It also claims the appellate panel decision that reinstated Brady’s suspension conflicts in two areas with decisions from the Supreme Court and other circuits.

The matter has implications for all unionized workers who have bargained for appeal rights as protection, the petition said.

“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,” Brady’s attorney Ted Olson, a partner at Gibson Dunn & Crutcher and the former U.S. Solicitor General, said in a statement.

Thomas Stipanowich, academic director of the Straus Institute for Dispute Resolution at Pepperdine University, called the situation a “very strange state of affairs.”

“Where a party [to a dispute] is acting as an arbitrator, it is no surprise that the other party [to the dispute] might have a lot of questions about the determinations that they make,” Stipanowich said.

The portion of the NFL union contract that lets the commissioner either serve as arbitrator or appoint one, has been a mainstay since the beginning of professional sports, said George Atallah, spokesman for the NFL Players Association. Players have spent years trying to change it so a “neutral arbitrator” presides over personal conduct matters, but the NFL has resisted, according to Atallah.

The NFL did not respond to requests for comment Monday.

If the Second Circuit denies Brady’s petition, his final option would be asking the Supreme Court to weigh in.