USA TODAY International Edition
2nd Circuit Court has next move in Deflategate case
Judges could deny Brady’s petition or opt to hear case again
One of the many routes Tom Brady’s Deflategate appeal, which was filed Monday, could take is actually referred to as “stop the clock,” the legal equivalent to spiking the football that could further drag out the year- long courtroom drama over the fourgame suspension of the New England Patriots star quarterback.
Lawyers for Brady and the NFL Players Association requested a rehearing in front of the same three- judge panel that ruled in the NFL’s favor last month along with an en banc petition, a request that, if granted, would put the case before all 13 active judges in the 2nd Circuit Court of Appeals.
The attorneys representing Brady argue a rehearing is warranted because NFL Commissioner Roger Goodell doesn’t have the power to suspend Brady for his role in the deflation of footballs used in the 2015 AFC title game. The petition also says Goodell disregarded the usual discipline schedule for equipment- related violations.
“The petition raises exceptionally strong arguments,” sports attorney Daniel Wallach, who reviewed a draft of the petition, told USA TODAY Sports. “The prospects for a rehearing are bolstered by the dissenting opinion from Chief Judge ( Robert) Katzmann. The petition makes a persuasive case that a rehearing should be granted based on Goodell changing that factual basis of the underlying discipline as Katzmann wrote in his dissent.”
A three- judge panel overturned a district court ruling April 25, effectively reinstating the suspension imposed by Goodell last May. Lawyers for Brady and the NFL Players Association were granted an extension until Monday to file their rehearing petition.
Rehearing petitions are rarely granted, especially en banc petitions in this particular appeals court; the 2nd Circuit traditionally awards the fewest among the nation’s dozen appellate courts.
There are a few paths the 2nd Circuit can go when it considers the petition:
The judges could do nothing over the next 21 days, which effectively upholds the ruling by the three- judge panel.
Judges can “stop the clock,” which would result in a 14- day extension in which the NFL could be asked to file a response.
The original three- judge panel could decide to rehear the case. The panel could also be requested to rehear the case by a judge who did not sit in on the case.
An en banc vote could be called by any of the active judges or the 10 senior judges. A majority of the active judges would have to agree that a rehearing is warranted.
A majority of the active judges could outright deny the petition.
“The critical thing to look for is the court ordering the NFL to respond,” said Wallach, a partner at Becker & Poliakoff. “That will give this petition life and would be a very, very strong indication that the court is leaning toward granting a rehearing.”
The parties could know within a few weeks what direction the 2nd Circuit goes with Monday’s petition, but the process can drag on for 90 days in some cases. Factoring in time for a decision if a rehearing is granted either by the original panel or the full 2nd Circuit, Brady’s suspension could be on hold at least through the summer.
And even if the 2nd Circuit does not rehear the case or upholds the original decision by the three- judge panel, Brady and the NFLPA could petition the U. S. Supreme Court. The odds of the highest court in the land taking the case, however, are slim, as the Supreme Court takes up about 80 of the 7,000 petitions it receives annually.