Polling the Experts: Who Will Win the Deflategate Appeal?

Patriots Inflated Helments PicWe asked some of the top lawyers following the Deflategate appeal: Who do you think will win?  Here are their answers:

Stephanie Stradley, Lawyer & writer for the Houston Chronicle Online.

Who wins? NFL.

“Judges are hard to predict, and even Jeffrey Kessler seemed surprised by the oddly fact-focused nature of the questions, and issues framed in ways that support the NFL’s view, even when they didn’t correspond to the record. More words here: Snapshot of Deflategate Second Circuit Argument.”  Because of the odd nature of the questioning and that you can’t always tell what an appellate judge will do based on just their questions, I give my prediction a 5.”

Confidence level: 5 out of 10

Ian Gunn, Lawyer & Writer at The Sports Esquires

Who wins? NFLPA/Brady.

“If I had to base my prediction based solely off the oral arguments, I would probably say the NFL would win, but the case involves more than that. I still believe that there’s more to the NFLPA’s arguments and that the law and arguments, as explained in the parties’ briefs, favor Brady. Like many legal questions, the question of who wins depends on what you mean by “win.” Understanding that, I think that Brady will win at least one of the issues on appeal, meaning his punishment will not be reinstated by the Second Circuit.”

Confidence level: 6 out of 10

Warren Zola, Sports Law Expert & Professor at Boston College, Carroll School of Management

Who wins? Toss-up.

“Prior to the hearing, it appeared highly unlikely that the NFL would be able to convince two of the three federal appellate judges that Judge Berman erred in vacating the league’s arbitration punishment. However, after the hearing, it is apparent the three-person panel embraced the precedent of granting broad latitude to the power of a professional league’s commissioner.  Before the hearing I’d have given the NFLPA a decided edge, yet now, while one can never predict court rulings with any certainty, after the hearing I’m calling the outcome a toss-up.”

Andrew Sensi, Lawyer & Writer at The Sports Esquires

Who wins? NFL

“Based on reports from the oral arguments I have to side with the NFL winning the appeal.  In order to reach that result, I think the appellate judges will focus on the deference that must be given to the arbitrator (Goodell) and give short shrift to the issues of notice and fundamental fairness. However, unless the 2nd Circuit addresses the issue of Goodell’s bias, the NFLPA and Brady still have a way to win. Remember, in 2015 the Missouri Supreme Court found Goodell insufficiently neutral and ordered a new arbitration in a dispute with a Rams employee. In short, I think this case is far from over.”

Confidence level:  6.5 out of 10

Jason Bonk, Partner and Sports Lawyer at Cozen O’Connor

Who wins? NFLPA/Brady [NOTE: Prediction given prior to oral argument]

“The NFL compared Brady’s violation to PEDs, which looks even worse now with Peyton Manning in the news (for alleged HGH use).  There has to be a clear error by Judge Berman and it’s just not there. I predict that the judges will affirm. Judge Berman’s decision was carefully crafted. Berman talked about the unfairness and the evidence that was excluded – primarily the issue of Jeff Pash editing the Wells Report. I think that obviates the idea of clear error. Judge Berman is well regarded and you have two liberals on a three person panel. That said, if it was reversed and Berman ruled in favor of the NFL and the CBA [originally], I would say Brady would have no chance of winning at the appeal level.”

Confidence level: 6.5 out of 10

Tony Iliakostas, Law and Batting Order

Who wins? NFL

“Before today’s hearing, I was almost certain Brady had a stronger argument going in, as Brady’s brief and arguments before Judge Berman state that the only reason he wasn’t entitled to a suspension for deflated footballs was because he never received fair warning or notice from Commissioner Roger Goodell and the NFL. However, judging from Thursday’s oral arguments, Judges Chin, Parker, and Barrington seem to use facts from the Deflategate case (mainly, Brady’s destruction of his cellphone) to assert the position that Brady’s non-compliance with the Deflategate investigation was conduct that was detrimental to the league. Yet Jeffrey Kessler, arguing on behalf of the NFLPA and Tom Brady, suggests that even if the NFL punished Brady because his behavior was “conduct detrimental to the league,” he still needed notice; the judges seemed to buy the NFL’s argument that Commissioner Goodell was acting from a purely discretionary position to punish Brady as a violation of league policy, even if Brady’s conduct was not expressly spelled out. Perhaps Kessler just had a bad day in court, but facially, it looks like the NFL will come out victors.”

Confidence level: 7.5 out of 10

Thomas Baker, Lawyer & Sports Law Professor at University of Georgia

Who wins? NFL

“I’ve always thought that the NFL had the stronger legal (not factual) argument based on a line of Supreme Court precedent that strongly favors deference to arbitrators in interpreting collective bargaining agreements. In fact, courts are “extremely limited” in reach, even in cases involving “serious error.” My hunch is that the Second Circuit is aware that the Supreme Court is more likely to hear this case if the NFLPA/Brady win than if the NFL wins. So the court may call a safe route and side with the NFL. There also exists an underlying issue of whether the courts should be involved in so many player disciplinary challenges to Commissioner authority. As for the “bias” aspect inherent in Goodell hearing appeals from his own decisions, the NFLPA needs to fix that through negotiation rather than litigation. Had Goodell given Brady access to all the evidence and witnesses (Pash in particular), my confidence level would be higher.”

Confidence level: 6.5 out of 10

Dan Werly, Sports Lawyer & Managing Editor, The White Bronco

Who wins? NFLPA/Brady

“Going into Thursday’s oral argument, and based on the appellate briefing, I was confident that Brady’s legal team would prevail.  While oral argument certainly did not go as planned for Brady, we need to keep in mind: (1) Difficult questions were asked of both sides and the tenor of the judges doesn’t necessarily reflect which way they will vote, (2) The Second Circuit only reverses 9.4% of district court opinions and even less of those opinions authored by Judge Berman, and (3) Brady only needs to prevail on one of the grounds that Judge Berman identified.   All of that being said, I am sticking with Brady but am not that confident about it.”

Confidence level: 2 out of 10.

Final Tally:

NFL wins – 4 votes

NFLPA/Brady wins – 3 votes

Toss-up – 1 vote

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