Want to know more about Tom Brady and the NFLPA’s request for a Deflategate Second Circuit rehearing? You can find the Deflategate Brady En Banc Petition here if you wish to see what is said versus a summarized form. It also contains an appendix that has the Brady Second Circuit opinion.

When I get a lot of questions on social media about a topic, it is best to put them in a blog post so I don’t have to repeat myself. Here are some of the repeated questions:

What do you think of the Tom Brady – NFLPA’s petition?

Well written, of course. Is what you would expect from a Ted Olson filing.

What this filing does well is to explain why Tom Brady’s position is legally right, right from a public policy perspective, and also why he is in the right.

Brady being “in the right” is also known in the law as the “equities” of the situation. In this situation, it is the question, “Did Brady do anything wrong?”

Was that supposed to be the question on appeal? No. Is it something that seemed to trouble the Second Circuit in its majority opinion? Yes.

It is an art to subtly talk about something that isn’t supposed to be of legal significance, but certainly is a part of a larger argument about why you are legally right and from a public policy perspective also right. (Read the Rule 35 (B) Statement on the first page of Olson’s filing. Effective recitation of key facts that are relevant to why the majority opinion is wrong).

From my view, the NFL didn’t do a good job of that in front of District Court Judge Berman but did a better job of that with Paul Clement’s filing to the Second Circuit.

Ultimately, the battle is now: “Is the majority opinion bad/inconsistent with labor and arbitration jurisprudence?” Clement made that argument better in the first Second Circuit argument, but I think the NFLPA’s best argument on this is better. If it gets heard in a rehearing, which it may not.

What are Tom Brady’s chances of winning?

This case is difficult to handicap. Typically, requesting a rehearing or a rehearing en banc is the longest of long shots. But looking at previous cases to determine this case’s trajectory has mostly been a futile exercise.

This case’s journey through the federal courts is weird. Rollercoaster results of whether Tom Brady will play or not play 4 games. Labor winning an arbitration case at all. District court ruling overturned. High profile litigants. Huge public interest. Superstar appellate attorneys. Limited specific case law as it relates to the NFL’s power grab uses of CBA since 2011.

The topic is likely the dumbest in federal court history: Deflation of footballs that didn’t effect the result of a game. However, now this is recast as what are the powers of arbiters, and labor arbiters specifically, even ones with great powers.

Is the NFLPA’s argument too little, too late?

When the NFL hired Paul Clement to make their argument in front of the Second Circuit, the NFLPA probably should have matched with their own specialist. I didn’t find the briefing of either party to be particularly persuasive, but the NFLPA briefing was probably the worst I’ve seen from them. And it was clear that Jeffrey Kessler was surprised by the fact-oriented tone of the Second Circuit questioning.

(To be fair, the facts of this matter are muddled and confusing to those who even have a great familiarity with them, and often the side of the case that is easier to explain can be more persuasive with limited time).

That said, I think the majority opinion is wrong, and bad for the players, game, fans, and arbitration participants, and the Olson filing explains why generally.

In some ways, I think the majority opinion misstates the factual record to justify their own interpretation of what the CBA means versus what the parties agreed to when they entered into it. The idea that if the NFLPA wanted to limit the Commissioner’s authority, they could have done it. Well yes, yes they could, but nobody could have anticipated the bizarre process and decision making the NFL used and that they would ignore the rules they already have in place and have followed for years.

This is well summarized by Twitter user @Ugarles as:

“distinction between ‘we agreed Goodell could hear appeal’ and ‘on appeal, Goodell can do anything’.”

I think the Olson filing does a nice suscinct job of factually describing how peculiar the NFL’s actions were in handling this discipline issue.

Being able to persuade judges that it is enough for a rehearing is tough however. Judges don’t want to waste judicial resources by rehearing something already heard. That said, judges also don’t want to create labor chaos by a ruling that is bad for arbiters and labor. Olson’s position is that if an arbiter can make up new reasons for punishment on appeal that would create chaos generally.

I’d like to see these positions more fully briefed and argued. Between two powerhouse appellate lawyers. Perhaps the judges will too.

(Updated questions on amicus briefs, May 25, 2016)

What is an amicus brief? Does the court have to consider them? Have the Patriots “joined” the lawsuit?

An amicus curiae brief means “friend of the court.” It comes from someone who is not a party but has relevant, hopefully useful information to give the court. They are usually offered to the court when a decision doesn’t just effect the parties involved with the dispute but may have larger implications to the law.

They are of varying helpfulness depending on what is important to a particular judge and how they are written. How much the court considers them is very individual to the judges. In cases of great interest, some typically are trash, some are good.

I’ve seen some questions based on early news reports about whether the Patriots amicus brief means that the Patriots have “joined” Brady’s appeal. Technically no. They are not becoming a technically a party to the lawsuit even though Brady is their player, and they are a part of the NFL. It is pretty weird though given their relationship to the parties.

I know some fans were disappointed that the Patriots didn’t sue the NFL. That as an option was never ideal. Even offering this amicus brief is a pretty aggressive move given what latitude Roger Goodell has in making up punishments based on how he feels about things.

What do you think of the physics professors’ amicus brief? The Patriots’ brief?

You can read the Physics Professors’ amicus brief here. You can read the Patriots’ amicus brief here.

I think it goes to the equity issue I discussed before. Judges are human beings, and humans tend to prefer not letting people getting away with bad acts under the cover of legal standards. Lawyers and scientists tend to be more disturbed by the Exponent Report being a basis for the punishment because: 1. Junk science is not admissible in courts; 2. Scientists don’t like stuff being called science that is not real science and is total BS and wrong.

Imagine that.

That said, the science hasn’t been a huge part of the appellate record because of the weird history of the litigation. Judge Berman at the District Court level focused on some more narrow, appellate issues, and ruled in the manner that ends up not sending the case back to the arbiter. How? If Brady didn’t have proper notice, that is not something that is curable after the fact.

The Patriots brief is more focused on the specific facts that the headlines in this case often got incorrect if you didn’t carefully review the record.

Usually, facts are not a big deal this far into the appellate process. However….

The most jaw-dropping moment at the Brady appeal hearing was Judge Denny Chin asking the following to NFLPA’s Jeffrey Kessler: “When you read all the evidence, the text messages, the evidence of the ball tampering was compelling if not overwhelming…So how do we as appellate judges second-guess the four-game suspension?”

Wait, what?

Anyone very familiar with the factual record would know this is bizarre. And no one anticipated the court would veer in this very fact based direction as a part of the appellate argument.

(Though notably, the NFL’s brief in front of the appeals court did a better job trying to sway the court on the facts than the NFLPA brief did as just a way of saying that they are not just legally in the right, but actually right. As the Patriots’ amicus brief notes, some of those “facts” seemed to be lies mistatements of the record. The majority opinion recitation of the facts contains a number of inaccuracies, though those alone aren’t enough to grant a rehearing).

There really wasn’t an opportunity for Brady to refute in writing or verbally a great deal of this evidence due to how the process worked. Or didn’t work, more accurately.

The Wells Report was not a format to do that. The appeal transcript does it to a limited degree, but there was a short time limit to deal with both factual issues and technical science issues. Then the appeal ruling brings up new issues, that are completely refutable, but when the case goes to the appellate level after an arbitration is concluded, only certain factual issues are relevant to the standard on appeal.

The majority opinion bakes in a lot of “facts” in their ruling but I think, in part, what the amicus briefs are trying to do is demonstrate why the lack of notice and the changing of grounds against Brady at different levels truly matters and isn’t just lawyer tap dancing.

The facts from the amicus brief illustrate the challenges Brady faced in trying to defend himself. That the process issues that Brady is appealing are not hypertechnical but rather basic things essential for an arbitration and are a part of the CBA. That this is not the deal that the NFL or NFLPA struck, and it is not how arbitrations appeals should happen between labor and management anywhere.

For more information specific to the CBA and the NFLPA’s position that they want the NFL to follow the CBA, rules, and the fairness baked into it under labor law, I suggest visiting this post I wrote in July 2015 called “Answering Your Deflategate Legal Questions.”

Should we expect more amicus briefs?

Perhaps. High profile matters often get them. Now the factual reasons that support the Brady position have been offered to the court, it would not be surprising to hear from labor organizations. Brady would likely welcome that sort of good filing to demonstrate that this isn’t just a specific weird NFL CBA issue but rather something that has larger implications as it would create chaos and uncertainty in arbital proceedings.

It would be interesting if there were big business amicus briefs in support of the NFL position. I’m not sure it is in their interest given the “Pigs get fed, hogs get slaughtered” theory. These days business arbitration law has been under fire of being too pro-business. And that there has been calls for more protections for workers and consumers. That legislators should make arbitration a freely chosen thing and not inherently unfair to individuals. The NFL process is so messed up who would want to claim that as something that should be the new normal? OK, some might, but I’m not sure I’d advise it.

Should I submit an amicus brief?

If you need to ask me this question, the answer is no.

Isn’t this a huge waste of money?

Yes. The millions and millions of dollars spent on this could be spent in much better ways. Burning it for heat would be more useful.

The owners have more money to spend then the players so it probably works to their interests to make the union use their money on things like this instead of saving it for a war chest for other things, like preparing for the next CBA.

Even if the NFL lost, they still win because a labor loss likely just means they need to be reasonable and act like other leagues. If they lost, it really isn’t a terrible precedent, because they can just tweak their discipline process again, and aim it at another player in the future. If they lost, they don’t miss any games or lose any salary or career opportunities.

But the NFLPA had to fight every single one of the excessive power grabs of Goodell, ones that were not fathomable when the CBA was signed in 2011. The Second Circuit ruling if it stands says Goodell can do whatever he wants basically. There is no process for a player to maintain innocence. If the player doesn’t cooperate, that is held against him. If he does cooperate, it isn’t enough.

This section of my FAQ is very cynical. Don’t try to tell me that it isn’t true though. Okay, this I’m bored with this blog post, it’s kind of a bummer so I’m going to lazily conclude it.

Let’s just all agree we wish the NFL handled things in a more normal and professional way.

More Questions?

Have any more legal questions or thoughts about the Deflategate Second Circuit rehearing request? Please put them in the comments below and I will try to answer as I can. They are all moderated by me, so please keep them civil and germane because it makes it less combative and more useful to everyone just looking for information. I reserve the right to not publish ones that are potstirring/abusive because I don’t want to contribute to that nonsense. Also, please read the comments before commenting yourself because sometimes your questions are already answered.

If you haven’t already read my posts on NFL discipline over the years, here’s more than you would likely want to know. I answer a lot of general Deflategate questions there.

Also, please note for those who care about such things. I am not a Patriots fan. I am a Texans fan. It would likely benefit my favorite team if Tom Brady did not play against the Texans this season. That said, when I analyze anything, I try to do it neutrally, while looking from all perspectives and without specific benefit to mine.











