Observers of the oral argument suggest that the NFL has a good chance of getting the Brady suspension reinstated. I don’t actually think that Petchesky is correct that this “would be the most shocking thing to happen in this whole bizarre shitshow”; if you bet on an arbitration decision being upheld in federal court you’re going to be right much more often than you’re wrong.

It is, however, worth taking note of why court observers believe that 2 members of the Second Circuit panel are likely to side with the NFL. Was the argument from the pro-NFL judges that regardless of the merits of Goodell’s ruling, the court owed absolute deference to it? Not hardly:

While a slew of scientists have weighed in with their opinion in support of Brady, using scientific experiments to show that time and weather not a locker room attendant with a needle inside a bathroom most likely led to varied air pressure measurements, two of the Court of Appeals judges, Denny Chin and Barrington Parker, Jr., seemed less sympathetic, and repeated many of the NFL’s facts and arguments of the case, including ones that have been scientifically debunked. “The evidence of ball tampering is compelling if not overwhelming,” Chin said, according to Ben Volin of the Boston Globe. It got worse for Brady though. There were questions about Brady destroying his cell phone, which his camp has long argued was moot because NFL investigators told them they didn’t physically need it. “Brady’s explanation made no sense,” Judge Parker said, according to reports. “They weren’t credible.” There were questions about gifts given by Brady to locker room attendants being inducements (presumably to help with the deflation process) even though that has been common practice across all professional sports for generations. There was even questioning on NFL commissioner Roger Goodell’s claim that Brady and equipment manager Jon Jastremski never discussed the controversy swirling around them as the scandal broke in the days after the game. That was something Goodell found so preposterous – How could you not discuss it? – that he believed Brady was lying. The problem was Brady’s testimony showed he said on five different occasions that he and Jastremski did discuss the growing controversy. Goodell’s complete misrepresentation of Brady’s testimony was one of the more troubling aspects of the case. Apparently the judges didn’t review the actual testimony or they just discounted it. Who knows?

Far from undermining the legal realist lessons of the previous round, then, if the Second Circuit decides the case as expected it will re-affirm them. The text of the Federal Arbitration Act does not decide this case; Berman’s opinion was neither compelled by the language of the statute nor lawless. If Brady loses it will almost certainly be because he drew a circuit court panel that had two judges who are sympathetic to the NFL’s actions on the merits. He will be right to be outraged by this, because on the merits the NFL’s actions were completely indefensible — the evidence that Brady committed the offense for which he is charged is in fact remarkably weak, and the punishment was grossly disproportionate even if the NFL actually had any evidence. But, as we’ve seen, for a variety of reasons a lot of people are inclined to support Goodell here anyway, and federal judges are not necessarily exceptions.