It is clear now that the “Deflategate is going to be a distraction to the Patriots” narrative was a complete farce. The Pats are sitting pretty — except for all of those pesky injuries — at 10-1 with a four game lead in the AFC East. As for Brady, he has his highest QB rating since 2010 and is trolling opponents harder than ever.
Don’t fret bored Patriots fans; Deflategate is about to heat back up. Brady’s lone appellate brief due date is right around the corner (December 7th) and the appellate court recently set an oral argument date of March 3, 2016.
The following will get you completely up to speed on the NFL’s appeal arguments and will take a stab at how this will all end up.
How did we get here?
In short, Brady won at the trial court level and Judge Berman vacated Brady’s four game suspension (check out a full description of the facts and background of this case including Judge Berman’s decision here). On September 3rd, the NFL filed a notice of appeal and initiated the appeal process in the U.S. Court of Appeals for the Second Circuit (located in New York City) and on October 26th, the NFL filed its opening appeals brief.
First Things First: Understanding the Standard of Review
On appeal, a three judge panel will only consider legal arguments and facts that were previously presented to Judge Berman. There will be no discussion of whether or not Brady actually deflated footballs.
Keeping that in mind, the next step is to review the applicable standard of review. The NFL argues that Judge Berman should have affirmed Goodell’s arbitration decision if it had anything to do with the CBA or if it drew “its essence from the CBA.” It goes on stating that the only way that Judge Berman could have overturned the award is if it was “procured through fraud and dishonesty” or it can be understood solely as “an exercise of the arbitrator’s own brand of industrial justice.”
In other words, the NFL stance is that Judge Berman was required to affirm the award even if he disagreed with the outcome and could only overturn the award if Goodell acted fraudulently or so egregiously that he completely ignored the CBA (more on Brady’s position below).
What is the NFL Arguing?
- Judge Berman applied the wrong standard.
This ties into the preceding paragraph, but essentially, the NFL argues that instead of determining whether Goodell based his decision off of anything related to the CBA, Judge Berman improperly conducted his own determination of the facts and application of the CBA.
- Brady had notice that Goodell could punish him for “any” conduct that harms the game.
As a refresher, Judge Berman held: (1) that nothing in the CBA allowed Goodell to suspend Brady for being “generally aware” of the equipment managers’ actions; and, (2) that Brady had notice of polices related to uniform and equipment violations, but that he could only be fined, and not suspended, under those provisions. Notably, the Court found that Goodell’s attempt to use the “conduct detrimental” (Article 46) standard, rather than using the specific policy related to uniform and equipment violations, was “legally misplaced.”
The NFL rebuts these conclusion by stating that Judge Berman’s “notice concerns were misplaced” (interesting choice of words) and that Brady was only required to receive notice of Goodell’s power to suspend for conduct detrimental to the league. In the NFL’s words:
Applying the proper standard, the only “fair notice” to which a player is entitled is notice that the Commissioner has the power to discipline a player for conduct that he deems detrimental to the integrity of, or public confidence in, the game of football, and to impose discipline for such conduct that includes the discipline imposed here. Brady unquestionably had that in spades.
In other words, Brady had notice — via his signed player contract — that Goodell could suspend him for any conduct detrimental to the game.
- Judge Berman could not question Goodell’s factual determination not to compel co-lead of the Wells Report Jeff Pash’s testimony.
During Brady’s arbitration, Goodell (acting as hearing officer) denied Brady the opportunity to examine Jeff Pash, who was identified as the co-lead of the Wells Report. The NFL argues that the language of the CBA does not require the testimony of every witness but, rather, it allows the Commissioner to determine what testimony is appropriate at the hearing. Thus, Goodell’s decision to not allow Pash’s testimony was a factual determination (that Pash’s testimony was duplicative) within the bounds of his power under the CBA.
Moreover, the NFL emphasizes that Goodell, after first denying Brady the opportunity to cross-examining Pash, provided Brady the opportunity to “revisit” that ruling, and Brady elected not to.
So, viewing this through the lens of the standard of review (above), the NFL’s argument is that Judge Berman “simply refused to accept the Commissioner’s view of the facts” rather than explain how the Commissioner’s actions failed to draw their essence from the CBA. The NFL similar argues that Berman improperly ruled that the NFL withheld investigative notes.
- Brady should lose on the three arguments above and not be allowed to reargue issues not decided by Judge Berman.
According to the NFL, if it prevails on the three preceding arguments, there is no reason for the appellate court to send the case back to Judge Berman because the arguments that he did not rule on (such as Goodell’s impartiality) were “plainly meritless.” The NFL asked the appeals court to rule on these issues rather than remanding them back to Judge Berman.
Who is going to win?
Judging on the numbers alone, the NFL is a heavy underdog:
The NFL does, however, have a few things working in its favor. First, newly added lawyer and appellate specialist Paul Clement is one of the best in the business, and if anyone can win this appeal for the NFL, he is the guy. Second, they make some potentially compelling points on appeal. Namely, it is possible that the appeals court buys the argument that Goodell’s decision– although incorrect — drew a slight piece of its essence from the CBA and thus, Berman did not have the ability to overturn it.
At this stage of the game (will update once we see Brady’s arguments), I give the NFL a 20% chance of winning on appeal.
What are the next steps?
As noted above, Brady’s response to the NFL is due on December 7th. The NFL will get a chance to respond in writing to Brady’s argument by December 21st. The Second Circuit will hear oral arguments on March 3, 2016 and issue a written opinion sometime after that. Although this case is “expedited”, don’t expect a the opinion until late April at the very earliest. There are three possible ways the Court could rule (in order of most likely to least likely to happen):
- Affirm Judge Berman (Brady wins). The NFL then could appeal to the U.S. Supreme Court (although it is highly unlikely that the Supreme Court would take on such an appeal) or request that the all of the appellate court judges rehear the case “en-banc” (also unlikely).
- Reverse and Remand the case to Judge Berman (NFL wins). The case gets sent back to Judge Berman (hooray more litigation) with instructions to clarify certain issues and/or rule on issues that were passed over last time around. Berman’s new ruling would again be subject to appeal to the Second Circuit.
- Reverse Judge Berman’s decision and reinstate Brady’s suspension (NFL wins). Similar to #1, Brady could appeal to the U.S. Supreme Court (although it is highly unlikely that the Supreme Court would take on such an appeal) or request that the appellate court rehear the case “en-banc” (also unlikely).
It is important to note that due to the current schedule, under no circumstances would Brady be forced to serve a Deflategate-related suspension during the 2015-16 season.