Attorney: U.S. SC won't hear Tom Brady's appeal if he loses at Second Circuit

By Sharon Brooks Hodge | May 11, 2016

NEW YORK (Legal Newsline) – As expected, New England Patriots quarterback Tom Brady has asked the full roster of judges on the U.S. Court of Appeals for the Second Circuit to review a decision affirming a four-game suspension imposed by NFL Commissioner Roger Goodell.

If Brady loses that appeal, a business and employment attorney says it’s highly unlikely the U.S. Supreme Court would agree to hear the case.

“There’s a huge distinction between the NFL and its relationship with football players, and almost all other employees in this country and their employers," Joshua D. Cohen told Legal Newsline.

"There are so many cases that are much more important to the United States than this case, which basically addresses one contract."

Cohen - an attorney with Wendel, Rosen, Black and Dean in San Francisco - has litigated a variety of disputes focused on breach of contract claims.

In the case at hand, Brady has argued that the suspension amounts to a breach of contract because the NFL players’ agreement with the league stipulated he could be fined for infractions involving equipment. Instead, Brady was suspended.

Following the 2015 American Football Conference championship game, Brady was accused of participating in a scheme to adjust the air pressure in footballs below the permissible range. An investigation led to the NFL suspending Brady for four games.

Brady then requested arbitration, and Goodell, who served as arbitrator, confirmed the disciplinary action.

The relationship between the NFL and players is similar in nature to the collective bargaining that exists with teachers, firefighters, police, and their unions, Cohen said, in that disputes are resolved by adhering to rules established in either binding or non-binding arbitration agreements.

Consequently, the appellate court did not determine whether Brady should have been suspended for his role or participation in what has been dubbed “deflate-gate.” Rather, the court was asked to consider the manner in which the proceedings were conducted and if that process deprived the quarterback of fundamental fairness, a three-judge panel of the Second Circuit said.

“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 opinion said.

Brady has retained Theodore Olson, the Washington, D.C., lawyer who delivered the oral argument before the U.S. Supreme Court on behalf of George W. Bush to end the recount of votes when Al Gore contested the 2000 Presidential election. Olson frequently appears before the Supreme Court.

If the full Second Circuit upholds the three-judge panel’s ruling, the next step for Brady would be to appeal to the U.S. Supreme Court.

However, because the outcome of any ruling would have little impact on most American citizens, it is unlikely that the nation’s highest court would invest its time considering the case, Cohen said.

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