Experts say Brady’s lawsuit a long shot
The NFL and the players union have become so accustomed to facing one another in court that a single lawsuit wasn’t enough for them in the Tom Brady case.
Instead, the league and union filed dueling lawsuits in federal courts in New York and Minnesota over Brady’s four-game DeflateGate suspension, which was upheld Tuesday by NFL commissioner Roger Goodell after he heard the appeal of the four-time Super Bowlwinning quarterback for the New England Patriots.
The league is seeking to have Goodell’s ruling confirmed, while the union and Brady are attempting to have Brady’s suspension overturned.
Thursday, a Minnesota judge ruled the case should be heard in Manhattan. The NFL and its players have a long history in the Minnesota courts, where the players often have prevailed.
The NFL Players Association has had success in recent months contesting the suspensions of Ray Rice, Adrian Peterson and Greg Hardy. But legal experts say the union and Brady have the odds stacked against them in this case.
“It’s an uphill battle,” said Gabriel Feldman, director of the sports law program at Tulane University. “That’s primarily because as a general matter it is very difficult to overturn an internal arbitration decision whether the court agrees with that decision or not."
That doesn’t mean the union cannot prevail. But it does mean that Brady and the NFLPA must do more than demonstrate Goodell's rejection of Brady's appeal was incorrect.
The union also signaled in its lawsuit that it intends to seek an expedited ruling or an injunction that would allow Brady to play in the NFL's season-opening game Sept. 10 against the Steelers.
“There are two battles, one to get the suspension overturned and one to get a preliminary injunction so he can play while he attempts to get the suspension overturned,” Feldman said. “They’re both uphill battles. Courts are reluctant to overturn internal arbitration decisions. It's not whether the judge agrees or disagrees with the decision. The decision has to be shown to be arbitrary or capricious, or that the arbitrator was not impartial or there was a flawed process. To get an injunction, he'll have to show not only that he has a likelihood of success on the merits but also that he would suffer irreparable harm,” Feldman added.
“It’s hard to show how missing four games can’t be repaired by paying him his salary for those four games. You can try. You can argue that careers are short and those four games can’t be recovered. There are certainly grounds for review. The union has a host of arguments it can make and will make. It’s possible. But it’s a steep climb,” Feldman said.
Opinions vary about what the outcome is likely to be. David Cornwell, an attorney who has represented NFL players in a variety of cases and a former candidate for executive director of the NFLPA, said when asked about Brady’s chances of success in court: “None.”
“When you destroy evidence, as a matter of law, there is a presumption that the evidence would be harmful to you,” Cornwell said. “The explanation for destroying the phone does not make sense. It makes no sense to say that phone one was destroyed and phone two was not. It is reasonable to conclude that it is more likely than not they engaged in cheating.
“Since Judge Kenesaw Mountain Landis suspended players in the Black Sox scandal, it has been well established that commissioners have the authority to act to preserve the integrity of the game. They are challenging principles that have been in place since the beginning of sports.“