Brady’s last play
His Deflategate appeal denied, Tom Brady has a Hail Mary left: the Supreme Court,
Tom Brady rarely faces long odds on the football field.
But this time, the star quarterback of the New England Patriots will need help — and incredible good fortune — from the nation’s highest court to pull out another victory.
The 2nd U.S. Circuit Court of Appeals denied a request from Brady and the NFL Players Association for a rehearing of his fourgame suspension in the ongoing Deflategate case Wednesday, sending the strongest signal yet that a conclusion to the saga finally might be near.
But Brady has one move left in his legal playbook. He and the NFLPA have 90 days to appeal to the U.S. Supreme Court under a certiorari petition, which permits a higher court to re-examine a decision from a lower court.
“To use football terminology, a petition to cert for the Supreme Court is a Hail Mary,” Jodi Balsam, who served as the NFL’s counsel for operations and litigation from 1994 to 2002 and as counsel for football operations from 2002 through 2007, told USA TODAY Sports.
“I expect there to be zero interest in this case.”
Requests for comment from NFLPA lead counsel Jeffrey Kessler were not returned.
The Supreme Court receives 7,000 to 10,000 requests each term to review lower-court rul- ings. It grants about 80. Four of the eight justices must agree to hear the case.
As Raffi Melkonian, a partner at the Houston firm of Wright & Close, told USA TODAY Sports, “The odds are very low.”
Because the 2nd Circuit has twice ruled in favor of the NFL and courts have a general hesitation to intervene in labor disputes, Brady and the union would have to argue that Deflategate has wider-reaching ramifications under national labor law for the Supreme Court to consider hearing the case. The challenge Brady and the NFLPA face is to show the 2nd Circuit ruling is in conflict with similar cases that have set a prior precedent.
“There has to be something more at stake than the dispute between the parties at hand,” said Balsam, an associate professor and director of civil externship programs at the Brooklyn Law School. “There has to be some central principle of law that is unsettled that this group would need to get in there and resolve.”
Based on the statement the NFLPA released, it might already be building that argument.
“The track record of this League office when it comes to matters of player discipline is bad for our business and bad for our game,” the statement reads. “We have a broken system that must be fixed. We will review all of our options carefully on behalf of Tom Brady and all NFL players.”
“Broken system” and “bad for our business” provide the basis of the case the union likely will present to the Supreme Court, arguing that the league’s use of Article 46 of the collective bargaining agreement, which allows Commissioner Roger Goodell to pre- side over disciplinary hearings at his discretion, is a systemic problem facing the country.
Brady’s legal team cannot ask the Supreme Court for a stay, which would allow him to play while the decision renders itself in the system, until a motion has been denied by the lower court.
“I don’t think the 2nd Circuit thinks that it’s likely the Supreme Court will take the case, so I expect them to deny a stay relatively quickly,” Melkonian said.
Brady’s lawyers would then appeal to Supreme Court Justice Ruth Bader Ginsburg, who oversees the 2nd Circuit, for the stay. If she denies it, the union could ask the entire Supreme Court for the stay — another long shot.
“If he does get a stay and the petition is ultimately denied, Brady could find himself suspended (midseason) instead of missing games 1-4,” Melkonian said.
In April, the union retained the services of Theodore Olson, a renowned Supreme Court lawyer who was the U.S. solicitor general from 2001 through 2004 and successfully argued for George W. Bush in the case that resolved the 2000 presidential election. Olson’s appointment likely points to a last-ditch push in this case.
“That gives them a sliver hope,” Melkonian said. of