On May 22, New England Patriots quarterback Tom Brady appealed the decision of a panel of the U.S. Court of Appeals for the Second Circuit that reinstated his four-game suspension. Two big questions that many football fans have are (1) what happens next? And (2) will the decision be reversed? The answers lie in what are called standards of review and appellate procedure. The good news for Brady is that if he gets his case heard again the court will take a fresh look without giving deference to the previous decision. The bad news however outweighs the good because it will be tough for Brady to actually get his case heard again.
While the underlying “Deflategate” scandal was about the deflation of footballs, the case is not. That’s because the courts are not permitted to overturn an arbitration decision just because they disagree with the factual determinations of the arbiter. A court overturning an arbitration decision is similar to an instant replay official overturning an on-field ruling: the on-field ruling stands unless a high standard of review is met. The laws around collectively bargained arbitration provide one of the highest levels of deference in the law to the official that made the initial decision. The NFL can win the case even if the judges believe that Commissioner Goodell made the incorrect call, so long as Goodell’s behavior was “even arguably construing or applying the contract and acting within the scope of his authority and did not ignore the plain language of the contract.”
On appeal there are two main standards that govern review of a judicial decision. When the appeals court is looking at rulings related to facts it is required to offer deference to the previous judge. This would be like the league office reviewing a reply official’s decision and giving deference to the reply official’s decision. If, however, the appeals court is ruling on interpretations of law then the prior judge gets no deference, called de novo review in legal terminology, and the court replaces the prior judge as the sole replay official. Because everybody agrees on what happened during the hearing before Commissioner Goodell the only contested issue is did the facts meet the requirements for overturning an arbitrator’s decision, which is an interpretation of law. The panel of the appeals court therefore reviewed the decision de novo and replaced Judge Berman as the replay official. By a two to one vote the panel determined that Commissioner Goodell’s decision was valid. Judge Berman had found that the suspension was improper because there had not been proper notice to Brady that tampering with a football could result in a suspension, that Commissioner Goodell improperly excluded evidence, and that the NFL should have turned over more information the Brady’s legal team. The panel essentially found that Judge Berman was not sufficiently deferential to Commissioner Goodell and that the Commissioner’s decisions met the very low bar set for the behavior of arbitrators. As to whether any actual deflating occurred, the majority explicitly declined to take a position on that issue.
(1) So what happens next?
Brady doesn’t have the automatic right to further appeals. Now that he has requested that the full bench of the Second Circuit hear the case, the thirteen judges of the Second Circuit will decide if they want to re-hear the case that was decided by a panel of just three of them. This is called an en banc hearing. If Brady persuades a majority of the judges on the court to re-hear the case en banc then the thirteen judges will replace the three-judge panel as the replay official reviewing Commissioner Goodell’s decision (the third set of replay officials to review the decision). If Brady doesn’t get a hearing before the full court or if they grant a hearing and decide against him, he has one more chance. Let’s call it an onside kick. At that point, the only way for Brady to get his suspension overturned would be to persuade the United States Supreme Court to take his case. This is called requesting “cert” from the Supreme Court.
(2) Will Brady’s suspension be overturned?
The chances for Tom Brady getting a hearing are not very good. Only very occasionally do the judges agree to hold an en banc hearing and usually they agree to do so because there is an unclear area of law at issue that is extremely important or the panel decision does not conform to other decisions made by the Second Circuit Court of Appeals. While Brady’s team (his legal team, not the Patriots) has argued that there is conflict with decisions of other Circuit Courts, such a conflict is generally not enough to get en banc review. Brady’s chances are even lower than they might otherwise be because the Second Circuit grants among the fewest en banc reviews of any federal appeals court. So the chances are, Brady’s Hail Mary pass for en banc review will end up in the dirt.
As for his final chance to win a reversal of his suspension, an on-side side kick for Supreme Court review, there are a couple things to consider. First, the Supreme Court only grants cert where there is a compelling legal issue. Overall, the Court grants cert about one percent of the time. By way of comparison, onside kicks in the NFL work about 16 percent of the time. It doesn’t help that the current Supreme Court is down a justice and has been less active in stepping into cases than usual. So the bottom line is that Patriots’ backup quarterback Jimmy Garoppolo will likely be taking the snap when the team opens their season on September 11 against the Cardinals in Phoenix.