Bloomberg Law
May 20, 2016, 12:27 PM

Deadline Looms for Tom Brady’s Response to “Deflategate” Ruling

Lenore Adkins
Lenore Adkins
Bloomberg Law

Tom Brady has until Monday to file a response to the four-game suspension the U.S. Court of Appeals for the Second Circuit in Manhattan recently revived for the star quarterback’s alleged role in “deflategate.”

While Gibson Dunn & Crutcher attorneys and the NFL Players Association remain mum on what legal action the New England Patriot will take, analysts say Brady has three options to pursue, but that the odds of him successfully appealing the appeal are “near zero.”

Gary Roberts worked as the NFL’s outside counsel in the 1970s and 1980s with Covington & Burling. He is also a judge on the Court of Arbitration for Sport in Laussane, Switzerland. He says Brady could:

  • Ask the three appellate judges to reconsider their decision to reinstate the suspension.

  • Request the full Second Circuit to hear the case

  • File a petition for certiorari to the Supreme Court

The chances of the judges reversing their decision are “virtually zero,” Roberts said. And while an entire circuit rarely hears an appeal, it could make an exception for Brady, given the high-profile nature of his case, Roberts said.

The Supreme Court probably wouldn’t hear Brady’s case because there isn’t a huge public policy issue at stake, nor is there any disagreement in the appellate or lower courts at this time, Roberts noted.

“You can keep asking courts to reconsider or to go to the Supreme Court all you want, but it’s rare that those kinds of things are successful,” Roberts told Big Law Business.

Brady’s five-member legal huddle is composed of Gibson Dunn partners Ted Olson and Andrew Tulumello, as well as Winston & Strawn partners David Greenspan, Steffen Johnson and Jeffrey Kessler.

Lead attorney Olson is a Supreme Court litigator and a former U.S. Solicitor General. The Human Rights Campaign tapped him this week to file an amicus brief for businesses supporting the Justice Department’s lawsuit against a North Carolina law that forces transgender people to use bathrooms corresponding to the gender on their birth certificates.

Big Law Business reached out to Olson, but he is on vacation, according to the firm. Tulumello routed Big Law Business to George Atallah, a spokesman for the NFL Players Association. He declined to comment on potential legal strategies.

“There’s a lot of background to share, but we’re trying to be very disciplined until Monday until we figure out how this is going to proceed, if it proceeds,” Atallah said.

The Second Circuit reinstated Brady’s suspension in late April for his alleged role in using deflated footballs in a playoff game. The NFL originally imposed the punishment in 2015 and the matter went to an arbitrator, with NFL Commissioner Roger Goodell serving as arbitrator.

Goodell sustained Brady’s suspension and the NFL Players Association appealed to U.S. District Judge Richard Berman on grounds that Goodell did not serve as a fair arbitrator,Bloomberg reported. Berman vacated the suspension, and the NFL appealed to the Second Circuit.

Thomas Stipanowich, academic director of the Straus Institute for Dispute Resolution at Pepperdine University, said Brady’s case is one of the few he’s seen that permits a party to act as arbitrator. It raises questions about fairness and courts should step in and limit the broad range of private contracts, Stipanowich said.

The arbitration clause has been a mainstay in NFL union contracts since the beginning and players have spent years trying to change it so a “neutral arbitrator” presides over personal conduct matters, Atallah said. The most recent attempt occurred in March before talks collapsed between the parties, he said.

Another session hasn’t been scheduled and Atallah doesn’t know if another one will be following Brady’s woes.