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TSN Legal Analyst

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As much you might want DeflateGate to end, it’s not over. 

New England Patriots quarterback Tom Brady still has options available to him to challenge the reinstatement of his four-game suspension by the U.S. Court of Appeals for the Second Circuit.

Reversal by the Court of Appeal

The Second Circuit ruled in favour of the NFL restoring Brady’s suspension in connection with a scheme to deflate footballs. The ruling reverses Judge Richard Berman’s decision, where the Justice set aside Brady’s suspension on the basis that he was not afforded due process and that the appeal process lacked fundamental fairness.

In overturning Judge Berman, the Court of Appeals concluded Roger Goodell properly exercised his discretionary powers as commissioner and that the appeal process didn't deprive Brady of due process or a chance to fairly make out his case. 

The NFL's collective bargaining agreement confers broad disciplinary powers on Goodell. Among those powers is being allowed to impose punishments for conduct he deems to be “detrimental to the integrity” of the league. While that language is broad, it was agreed to by the NFL and the NFLPA. If the players don’t like it, the Court reasoned, then negotiate better terms.

It’s important to appreciate that Courts are generally reluctant to interfere with the decisions of arbitrators. Courts provide substantial deference to arbitrators and will only vacate an award in exceptional circumstances, including cases where an arbitrator has exceeded his or her authority.

And the Court of Appeals decision was not unanimous. Judges Denny Chin and Barrington Parker ruled in favor of the league, while Chief Judge Robert Katzmann ruled for Brady.

Katzmann concluded by writing, "...the Commissioner’s murky explanation of Brady’s discipline undercuts the protections for which the NFLPA bargained on Brady’s, and others’, behalf.  It is ironic that a process designed to ensure fairness to all players has been used unfairly against one player.” He also added that Goodell’s suspension reflected “his own brand of industrial justice.” 

So essentially, Chief Justice Katzmann concluded that Goodell’s punishment was not in keeping with the league’s rules, nor was it consistent with past practice or precedent. 

Brady’s Legal Options

Let’s be clear about one thing: it's very likely that Brady will serve his four-game suspension. That being said, he does have options. He could appeal his case to the Supreme Court. However, the Supreme Court is extraordinarily selective in the cases it hears, focusing on cases of national importance and unresolved law. The numbers bear that out. The Supreme Court hears about 150 of the more than 7,000 cases that it is asked to review each year - or about 0.01 per cent. 

Brady also has the option of appealing the case back to the same Second Circuit that restored his suspension - an en banc hearing where all the active judges on the Court rehear the case. And the Court will only agree to hear cases of exceptional importance or cases where the uniformity of the Court's decisions has been compromised.

Given that it's unlikely the Supreme Court will intervene, the circuit court is often the last resort for litigants. And an en banc review is rarely granted by the Second Circuit. Between 2000 and 2010, the Second Circuit heard 8 cases out of 27,856 – or about 0.03 per cent.

Brady’s case does not involve a novel area of law, nor is it a case of exceptional or national importance. It involves well-established labor law principles. Nothing really earth shattering here from a legal standpoint.

So that means it's unlikely that any court will hear Brady’s appeal. 

But should Brady file a petition for a rehearing en banc before the Second Circuit, his four-game suspension will be automatically stayed or temporarily set aside until the matter is addressed. He will have 14 days to file an appeal. Should the Second Circuit decline to hear the case, its decision will likely issue before the season starts, in which case Brady will start the season by serving his four-game suspension. 

But if the Second Circuit decides to hear the case, the suspension will be stayed until the case is decided. Since a decision would likely not be issued until 2017, it suddenly becomes likely Brady once again plays the entire season. 

Judge Katzmann, who offered a dissenting option, is also the Chief Judge of the Second Circuit. It will be interesting to see whether that has any impact on the Court’s willingness to hear Brady. Time will tell.

Brady only has a slim chance of getting his suspension overturned, but he does have legal options at his disposal. So while DeflateGate may be winding down, it’s not over just yet.