Tom Brady’s lawyers are asking a federal appeals court for a new hearing before an expanded panel of judges, telling them Monday that the principle at stake is not just a silly dispute over underinflated footballs — it’s the basic right to a fair process that is shared by all union workers.
Setting the stage for the “Deflategate” scandal to stretch into its third season, and putting Brady’s four-game suspension back in the hands of the courts, the players’ union asked that all 13 judges of the 2nd U.S. Circuit Court of Appeals hear the case that a three-judge panel decided in the league’s favor.
“As a union that believes in its obligation to fight for its members, it’s an easy call to fight on this,” NFL Players Association Executive Director DeMaurice Smith told The Associated Press. “We are looking for affirmation that when a person decides to cloak themselves as a neutral arbitrator, they buy into due process. No arbitrator is allowed to go rogue.”
The NFL did not immediately respond to a request for comment.
Brady was suspended four games for what NFL Commissioner Roger Goodell said was an illegal scheme to use improperly inflated footballs in the 2015 AFC Championship game. The suspension was overturned by a federal judge on the eve of last season, but a three-judge panel of the circuit court ruled 2-1 on April 25 that Goodell was within the rights granted to him by the collective bargaining agreement.
An appeal to the full 2nd Circuit — called “en banc” — is Brady’s next step in his attempt to avoid the suspension, but such hearings are rarely granted. Brady could then appeal to the U.S. Supreme Court, where the odds of obtaining a hearing are even slimmer.
Still, pushing forward could pressure Goodell into a settlement so another NFL season is not dominated by talk of deflated footballs.
Joining Brady’s legal team at this step is Ted Olson, who has experience arguing in front of the Supreme Court, including the Bush v. Gore case that settled the 2000 presidential election. Olson also was involved in the case that overturned California’s ban on same-sex marriages.
Olson said he does not expect a lengthy appeals process before the 2nd Circuit.
“We don’t know the timetable. They could call for additional briefings or just send out a notice that the petition has been accepted or denied,” he said. “They have the right to drag it out, but that would be very atypical.”
The union on April 29 sought an extension to file a petition for a new hearing. It cited the “serious consequences for each of the NFLPA’s over 1,600 members” and labor law issues that could have “far-reaching consequences for all employees subject to collective bargaining agreements.”
The three-judge panel in Manhattan ruled that Goodell did not deprive Brady of “fundamental fairness” with his procedural rulings. In a majority opinion written by Judge Barrington Parker, the court said the contract between players and the NFL gave the commissioner “especially broad” authority.
In dissent, Chief Judge Robert Katzmann said Goodell failed to even consider a “highly relevant” alternative penalty.
Last September, U.S. District Judge Richard Berman lifted the four-game suspension, saying Brady was treated unfairly by Goodell.
The judge cited “several significant legal deficiencies” on the league’s part, including no advance notice of potential penalties, a refusal to produce a key witness and the apparent first discipline of a player based on a finding of “general awareness” of someone else’s wrongdoing.
The Patriots open the season Sept. 11 at Arizona.
The Associated Press contributed to this article.
Richard Scribner says
You have to be kidding me some other person got caught or they said he did doing what ever and to blame any other person no madder whom with out any proff at all and as well try to fine them this ass wipe needs to go
Tom B is a winner and the other guy is Tolit paper used Richard
I can recommend a good English as a Second Language course if you would be interested.