It is day 492 of Deflategate, the scandal built around New England Patriots quarterback Tom Brady allegedly playing a central role in altering ball pressure levels below regulation to gain a competitive advantage in the 2014 AFC Championship game. Of course, those allegations were never proven.
That is part of the reason why Deflategate is still going strong even after more than a year – just like the NFL's unwillingness to change their point of view (at least if it supports Brady's). Add it all up and it is no surprise that we have reached yet another level of the United States federal court system.
Yesterday, Brady and the NFLPA have filed for a rehearing or rehearing en banc of the case, that saw Brady's four-game suspension reinstated in late April – the latest chapter of the story until now. The filing, which can be read in its entirety here, was been official filed yesterday afternoon and we will now go through it to take a look at some of its most important segments.
The filing starts with a general and highly important point
Yesterday's appeal for a panel rehearing – in front of the same three judges that agreed 2-1 with the NFL in April – or a rehearing en banc – in front of all 14 active judges of the Second Circuit – was written by Brady's lawyer and former U.S. Solicitor General Theodore B. Olson. The 75-year old has experience in all sorts of appeals processes and he knows how to use it.
Olson started his filing with the following statement:
This case arises from an arbitration ruling by NFL Commissioner Roger Goodell that undermines the rights and expectations of parties to collective bargaining agreements, and runs roughshod over the rule of law.
A key point of this sentence and the filing in general is that it does not simply focus on Brady vs. NFL but on general arbitration law. By leaving the scope of a football-specific dispute and making it a labor dispute, Olson might be able to convince the court to re-consider the case. After all, it might indeed be important outside the football world.
Brady's original appeal in front of Roger Goodell is central to the argumentation
After strongly criticizing the NFL's "multimillion-dollar investigation", which Olson called "falsely portrayed as independent" by NFL commissioner Roger Goodell, the lawyer went on to conclude that...
Goodell’s biased, agenda-driven, and self-approving "appeal" ruling must be vacated.
Olson then went on to write in detail about this ruling, constructing an important argument made on behalf of Brady and the NFLPA around it:
Although his arbitral authority was contractually limited to hearing appeals of disciplinary decisions, Goodell upheld Brady’s punishment based on different grounds that were not the basis for his original disciplinary decision. In doing so, Goodell did not even mention or discuss the collectively bargained penalties for equipment-related violations—the very misconduct he alleged.
In Judge Richard M. Berman's original ruling vacating Brady's suspension last September, he mentioned that he saw no need to reach some of Brady's other claims. One of those was the fact that the NFL moved its goalposts during the initial appeals process.
Olson made this an integral point of his argumentation stating that the ruling "if left undisturbed, will fuel unpredictability in labor arbitrations everywhere and make labor arbitration increasingly capricious and undesirable for employers and employees alike." As noted above, leaving a football-centric scope is clearly important for Brady's lawyer.
The filing mentions two reasons why a rehearing is warranted
Because the Court of Appeals' 2-1 decision allegedly conflicts with other rulings, Olson stated that a rehearing, whether in front of the three-judge panel or en banc, needs to be granted. The first of the two conflicts mentioned is as follows:
First, the panel held that the Commissioner acted within his authority when he affirmed Brady’s suspension based on new grounds that were not part of the disciplinary decision on appeal.
As noted above, the argument brought forward by Brady's team is that the NFL continued to move the goalposts and base the suspension on grounds not intended to be part of the initial appeal hearing. Therefore, Olson – unsurprisingly – sides with Chief Judge Robert A. Katzman, the lone pro-Brady vote in the Court of Appeals.
The second conflict regards the penalty and it not fitting the alleged crime:
Second, it is undisputed that the Commissioner completely ignored the collectively bargained schedule of penalties for equipment-related violations—key provisions that are directly relevant to the alleged misconduct, and that the NFL has acknowledged are "potentially applicable."
The violation of which Brady has been accused of, according to his lawyers, falls under the league's equipment policy and should have been treated as such and nothing more. This argument is closely tied to the first conflict mentioned above, as it would restrict the NFL's ability to impose a fine or suspension under the "integrity of the game"-moniker. Consequently, the league would not have had a ground to punish Brady as harshly as it did.
The conclusion of Olson's opening statement could be key
The majority of Olson's 16-page filing (with another 50 pages addendum) deals with background information and further arguments in favor of the two conflicts that are central to the case. The key part convincing judges to rehear the case, however, could be the conclusion Olson reaches prior to entering the world of legalese:
The panel decision will harm not just NFL players, but all unionized workers who have bargained for appeal rights as a protection—not as an opportunity for management to salvage a deficient disciplinary action by conjuring up new grounds for the punishment. The panel decision will also harm management by freeing labor arbitrators from collectively bargained limitations on their authority, enabling them to dole out their own brand of industrial justice.
As has been noted above, Olson – possibly thinking ahead to a potential filing in front of the Supreme Court – looks at the case from a wider scope and treats it not only as a football dispute but a labor dispute; one, that could have an effect on arbitration awards all over the country. If the judges agree with this point of view, then a rehearing will take place.
While the filing is rather short it clearly brings across the main arguments of Tom Brady's legal team: that Roger Goodell overstepped his authority, punished Brady on wrong grounds and that the dispute is important not just within the world of professional football. If the arguments are enough to convince judges to rehear the case remains to be seen.