Deflategate decision may come soon in federal court, but that doesn't mean end of it

Rachel Axon | USA TODAY Sports

A federal judge is set to rule on Tom Brady’s case against the NFL, but those weary of Deflategate would be wise to find patience. In all likelihood, litigation between the NFL Players Association and league is far from over.

Barring a last-minute settlement or delay by the court, Judge Richard M. Berman will either confirm or vacate the four-game suspension NFL Commissioner Roger Goodell upheld following Brady’s arbitration. That decision could come even as early as Monday, when all parties will be present in the U.S. District Court for the Southern District of New York. Berman has said he will try to rule by Sept. 4, a date agreed upon by the union and the league that would allow the Patriots to adjust for Brady’s availability for the Sept. 10 season opener.

An appeal is expected regardless which side prevails.

“The question will be how long the appeal takes,” says Gabe Feldman, director of the sports law program at Tulane and legal analyst for NFL Network, “and the process in front of Judge Berman has been remarkably fast but the wheels of appellate justice turn very slowly.”

Will Brady lose even if judge rules against him?

Likely to be decided quickly, however, is whether Brady will be able to start the season opener.

Following a decision by Berman, the losing party would immediately file a notice of appeal with the 2nd Circuit U.S. Court of Appeals. Then either side could seek a stay of Berman’s decision — but it would have to go to him first to ask.

To get a stay, either Brady or the NFL would have to show four things: a strong showing of likelihood of success, irreparable injury in absence of a stay, absence of a substantial injury to the party opposing the stay and the public interest. Those work on a sliding scale, so strength on one argument allows for another to be weaker. If Berman does not grant a stay, the losing party could seek one from the 2nd Circuit.

Feldman questions if the league would seek a stay in the event of a loss at the district court level, saying it would be a legal and business decision. If the league ultimately prevailed upon appeal, Brady could serve the suspension later.

“The biggest problem is they have to find irreparable harm, and there’s really no harm to the NFL of Brady playing while his suspension is being litigated,” says Raffi Melkonian, an appellate lawyer at Wright & Close, LLP in Houston.

In Brady’s case, Berman might still grant a stay for Brady even if he affirms the NFL’s arbitration based on Brady’s argument of irreparable harm were the suspension to go into effect while the case is being appealed.

Daniel Wallach, a sports litigator with Becker & Poliakoff in Fort Lauderdale, points to previous decisions in the Southern District of New York that indicate Brady has a strong chance of receiving a stay should Berman rule in favor of the NFL.

In 2004, Ohio State running back Maurice Clarett won a case against the NFL after the court found its rule requiring players to be at least three years removed from high school to enter the draft violated anti-trust law. Although the NFL ultimately prevailed on appeal, the judge in that case denied the NFL’s request for a stay because setting aside her decision would have essentially forced Clarett to miss that year’s draft while waiting for the appeal, causing “substantial injury to Clarett” but not irreparable harm to the league.

Brady could make a similar argument, Wallach says.

“If he’s forced to miss four games and ultimately prevails on the appeal, well what good will that do him except to get a few game checks back?” says Wallach. “While the power of a federal judge is vast, they have yet to master the art of time travel. No judge can go back in time and give Tom Brady his four games back.”

Wallach also points to Silverman v. MLB Player Relations Committee, which ultimately ended the 1994 Major League Baseball strike. In her decision, Sonia Sotomayor (then a district court judge and now a Supreme Court justice) wrote, “Given the short careers of professional athletes and the deterioration of physical abilities through aging, the irreparable harm requirement has been met.”

“This is all about the limited shelf life of an aging athlete,” says Wallach, “and in a context like that, irreparable harm is a slam dunk.”

Legal process may play out a while longer

While the decision regarding a stay is expected quickly, the appeal before a three-judge panel could take months. Unless the court decides to expedite the case, it would likely not be concluded before the end of the 2015 season. The median time from filing the notice of appeal to the final disposition of the case for a 12-month period ending March 31, 2015 was 10 months for the 2nd Circuit. The appellate court will have to decide whether Berman correctly applied the law in either vacating or confirming the award.

While Berman has raised question of facts underlying Goodell’s decision in proceedings this month — asking, for instance, what evidence implicated Brady in a scheme to deflate footballs — most see that as needling a pressure point to encourage settlement rather than the basis for his decision. A seasoned judge like Berman would be expected to examine the process and apply the law and precedent, which is what the 2nd Circuit would review.

“Did Berman comply with the precedent, the laws that have been created that really bind the parties in this dispute?” says Darren Heitner, of Heitner Legal in Fort Lauderdale. “If there is some sort of justification that Berman relied upon and used just that to make his determination, then it shouldn’t get overturned. But if in fact he went above and beyond his powers to come to his opinion, then perhaps there is an opportunity for it to be overturned.”

As part of his decision, Berman could remand the case back to the NFL for a second arbitration, remand it without another arbitration or say nothing on the matter. If Berman agrees with Brady and the union’s argument that the proceeding was unfair and Goodell was evidently partial, that could mean another hearing before a different arbitrator.

“I think this whole thing has been fairly embarrassing for the NFL,” says Alan Milstein, chairman of the litigation department at Sherman Silverstein in New Jersey. “You wonder why they haven’t somehow settled this case just on the grounds of Brady destroying the phone and that’s it. I would find it hard to believe they would start a new arbitration.”

Regardless of Berman’s order, on a second arbitration hearing, it would not be conducted until the 2nd Circuit issues its decision.

Already, nearly eight months have passed since the Patriots’ rout of the Indianapolis Colts in the AFC Championship Game and with potentially many more to go. With plenty at stake, especially for the league, neither side seems likely to accept Berman’s decision without more litigation.

“If Goodell loses, and the reason he loses is that there’s some fundamental problem with the process that the CBA allows, then I would say they need to completely change how they do player discipline,” says Melkonian. “This will have been a significant court, a respected judge, saying that this whole process doesn’t work.”

Whatever, and whenever, the 2nd Circuit decides is likely the final word on the matter. The losing party could seek a review by the entire 13-member court or appeal to the Supreme Court, but both are rarely granted.

“There is an incentive for each side to push this as far as they can because in a way this is about more than deflated footballs,” said Feldman. “This is about a long-standing battle between the players association and the league over the role of player discipline.”