The NFL’s New Deflategate Appeal Strategy: “It’s a Trap!”

Its a trap


There is an abundance of legal strategy that lies beneath the surface of what is written in brief and argued in court. One such example of this strategy is when a party chooses to make reveal a particular argument. Depending on the results of its latest maneuver, the NFL may have just masterfully presented a key argument (at least in the NFL’s opinion) in the final stages of the Deflategate appeal.

On Monday, the NFL filed its final brief (called the “reply brief) prior to oral argument (scheduled for March 3rd) in the Deflategate appeal. The filling included — in addition to many of the same arguments made by the NFL previously — an argument that we have not yet seen, the timing of which could effectively prevent Brady’s legal team from responding in writing. While not uncommon in the legal world, this is a calculated move, almost certainly planned from the beginning of the appeal.

How it Went Down

During the appeal process, as the Appellant, the NFL (Brady is referred to as the Appellee) gets two bites of the apple and gets to file the first and third briefs in a three brief sequence. In theory, this allows: the NFL to present its appellate argument; Brady the opportunity to respond to the NFL’s argument; and, the NFL the opportunity respond to Brady. In its third and final brief, the NFL is not allowed to present new arguments but rather only respond to arguments made by Brady.

Goodell FeaturedThe process is designed leave no argument by either party unanswered. In practice, it doesn’t always work out this way.

In the NFL’s opening brief (full breakdown here), it argued that NFL Commissioner Roger Goodell should be allowed to decide between: (1) using his authority under Section 46 of the CBA for conduct detrimental to the game to suspend Brady; and (2) using any other potentially applicable policy in the CBA, in this case the policy for Equipment/Uniform violations, to suspend Brady.

Notably, the NFL did not argue that Brady’s legal team conceded that the Equipment/Uniform policy does not apply to game used footballs and this case or that the policy itself does not apply.

Then, in this week’s filing, the NFL changed its tune:

But Appellees fail to mention a fatal flaw in their argument: The Commissioner did not address the Uniform Policy in his decision because both parties took the position that the policy was inapplicable. Indeed, in proceedings before the Commissioner, Appellees affirmatively stated that the policy does not cover Brady’s conduct because balls are not part of the uniform or equipment worn by players. Specifically, in his opening statement, Appellees’ counsel said that they “don’t believe [the uniform] policy applies … because there is nothing here about the balls.” No one disagreed—for the understandable reason that, as explained below, the policy plainly does not apply to game balls.

Here is the rub: The NFL, represented by some of the best attorneys in the country, likely foresaw that Brady’s legal team would recycle many of its winning “notice” arguments on appeal. (And why not? They were the basis for Judge Berman’s strong opinion in their favor.) Instead of including this argument in their opening brief (which would have allowed Brady to respond), they withheld it – setting the trap – and waited to unleash the argument in the reply brief in “response” to Brady argument, fully knowing that Brady would then not have an opportunity to respond in writing.

The NFL led with this argument, which is an indicator of what the party believes is its strongest argument  

There is no way of knowing for sure if this was the NFL’s strategy from the get go or whether they truly didn’t know what Brady would argue. But it is an educated guess. The NFL argues the Equipment/Uniform policy for 10 of 29 pages in the reply brief — the NFL’s final opportunity to convince the court in writing. They also led with the argument, which is usually an indicator of what the party believes is its strongest argument.

For the record — on the spectrum on Good Lawyering to Dirty Lawyer Tricks — this maneuver falls on the side of good lawyering. It is a relatively common strategy (albeit a somewhat risky one) that can be a very effective tool if used properly.

Is this Argument Important?

As an initial point, it is important that Brady may not have the opportunity to respond in writing. The briefing in appeals is much more important than oral argument, and in some (if not many) cases, the judges have their mind made up going into oral argument based solely on the briefs submitted.

As for the substance of the argument itself, in the lower court, Judge Berman held (citing a handful of cases stating the same) that the more specific Equipment/Uniform policy applied to Brady and therefore, Goodell was required to apply this policy instead of the more general “conduct detrimental” policy. If the appeals court buys that the Equipment/Uniform policy does not apply, then it clears a path for a ruling that Goodell did not mistakenly apply the “conduct detrimental” standard in suspending Brady (after all, there is no argument that Brady did have notice of this standard).

It is important that Brady may not have the opportunity to respond in writing.

However, and unfortunately for the NFL’s sake, winning the appeal is not that easy. They would still need to overcome the other grounds Judge Berman used to vacate Brady’s suspension including: (1) Brady had no notice of a four-game suspension as a parallel to steroid use; (2) Brady had no notice that a player could be suspended for “general awareness” of another persons misconduct; (3) Brady was improperly denied the opportunity to cross-examine Jeff Pash; and, (4) Brady was improperly denied access to the Wells investigation files.

Furthermore, the NFL may be taking liberties with its wording of Brady’s so-called admissions. As my colleague Ian Gunn pointed out, Brady has argued throughout the proceedings that no policy applies (and thus, he had no notice) but if one policy did apply, it is the Equipment/Uniform policy (which only provided for fines). Reading what Kessler actually said confirms this. So the passage is not quite the smoking gun the NFL would like the appeals court to think it is.

What Can Brady Do?

Brady FeaturedThere is a possibility that Brady’s legal team will petition the court for what is called a “surreply”, essentially asking the court for an additional opportunity to respond to any new arguments made by the NFL. This type of request is not the norm in civil appeals but is a tool that is used from time to time. If granted the opportunity to submit another brief, Brady will argue (among other things) that the NFL should be precluded from arguing that the Equipment/Uniform policy does not apply because they did not argue it in the opening brief.

If Brady’s legal team decides to seek a surreply, expect for them to move quickly (within the next week) and to file the proposed argument as an exhibit to its motion seeking permission to file (so regardless of whether the court grants Brady’s motion, we will get a preview of what will be argued during oral arguments on this point). If Brady’s legal team does not seek leave to file a surreply, it is likely a signal that they feel very strongly about their chances on appeal. In any event expect Brady’s lawyer Jeffrey Kessler, to strike hard on this point during oral argument.

Here is the full brief: 

Download the PDF file .

RelatedComplete Deflategate Coverage.

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  1. Alan says

    The NFL may have outsmarted themselves. If you accept the NFL argument that footballs are not something a player wears on his body so the player uniform/equipment policy does not apply, then the natural conclusion is that only the team penalties apply, which is exactly what the NFLPA argued. So IMO, the NFL’s argument did more to support the NFLPA argument than to refute it.

    • Daniel Werly says

      Interesting take, Alan — I hadn’t thought about it that way but that makes sense. I think that the NFL — backs up against the wall — really went for a home run argument and it definitely has the chance to backfire. It will be interesting to see what response (either in a surreply or at oral argument) Kessler comes back with.

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