Why Tom Brady’s Suspension Was Reinstated

Because a thing so insipid can never be allowed to die, Tom Brady’s four game suspension was reinstated by the U.S. Court of Appeals for the Second Circuit this morning after ruling in favor of the NFL by a 2-1 split decision.

“We hold that the Commissioner properly exercised his broad discretion under the collective bargaining agreement and that his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness,” the court ruled.

As things stand, Brady will sit out a quarter of the regular season, but if he does choose to keep fighting this, we could be treated to the perfect encapsulation of Roger Goodell and the NFL’s self-important authoritarian bent, Deflategate, being argued before the Supreme Court. So there’s that.

But for all of the endless squabbling over the minutiae in this case—the warped, paranoid conspiracy theories that were floated, actual sports fans trying to explain the Ideal Gas Law, and the flabby explanations which devolved to the point where Bill Belichick invoked the movie My Cousin Vinny, of all things—in the end, for the court of appeals, none of it really mattered.

“Our role is not to determine for ourselves whether Brady participated in a scheme to deflate footballs or whether the suspension imposed by the Commissioner should have been for three games or five games or none at all. Nor is it our role to second‐guess the arbitrator’s procedural rulings,” the court wrote. “Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act.”

The dissenting judge, Robert Katzmann, wasn’t buying that line of thinking.

“When the Commissioner, acting in his capacity as an arbitrator, changes the factual basis for the disciplinary action after the appeal hearing concludes, he undermines the fair notice for which the Association bargained, deprives the player of an opportunity to confront the case against him, and, it follows, exceeds his limited authority under the CBA to decide ‘appeals’ of disciplinary decisions,” Katzmann wrote. “In its thorough and thoughtful opinion, the majority does not contest this understanding of the CBA. Instead, it asserts that the Commissioner did not change the factual basis for the discipline and, in effect, that any change was harmless. I cannot agree.”

While the NFL Players Association, also a co-defendant in the case, said in a statement that they will “consider all of our options,” Vocativ spoke with Daniel Wallach, a prominent sports and gaming attorney who said that the odds that Brady and the NFL will, once again, drag the NFL back to court are “greater than one hundred percent.”

“There are no circumstances under which Tom Brady would refrain from petitioning for a rehearing,” Wallach said. “The only thing that would stop Brady is if the NFL agreed that he would not have to serve his four game suspension. If the NFL was content to just win on the principle of having the commissioner’s powers upheld by the Second Circuit for use in future cases. In the unlikely scenario that that happens, maybe Brady wouldn’t appeal the ruling further.”

That doesn’t stand much chance of happening, according to Wallach. “There is no likelihood that the NFL will be conciliatory towards Brady and let him skate on the suspension,” he said. “Not after all this scorched earth. Not after all these battles and bruised feelings. The NFL wanted its pound of flesh, and wanted it so badly it changed lawyers on appeal.”

Wallach explained that the NFLPA has a great deal more at stake here than just Brady’s brief absence. Namely, that by reaffirming Goodell’s broad powers, it could have a serious impact on future arbitration hearings. Further, though en banc hearings are rarely granted—eight times in total from 2000 to 2010—the presence of a dissenting opinion by the chief judge helps Brady and the NFLPA’s cause.

“I think this case has a strong chance of being reheard en banc,” he said, “I’m not going to go so far as to guarantee that it will happen, but it stands a real good chance. Arbitration is a very important in the Federal court, and a decision like this will impact so many future cases outside of football context. This is an important issue for the Federal courts to consider: the role, the scope, and the limits of an arbitrator’s powers.”

So can Brady win? “Most cases reheard en banc lead to a different result,” Wallach said. “Otherwise what’s the point?”

Oh nifty. This isn’t close to being over yet. Congratulations, commissioner Goodell, in the service of defending your absolute right to serve as the NFL’s judge, jury, and executioner, you’ve wasted and will go on wasting what must amount to millions of dollars on attorney fees while gumming up the judiciary—all so you can take one of the league’s highest-profile stars and best players ever off the field. Good job. Good effort.