At some point in the next few days, the NFL will follow through on its plans to appeal U.S. District court judge Richard M. Berman’s decision to the next level.
This will be followed by many more months of legal briefs, motions, and arguments, all of it, legal experts say, could well end in much the same fashion as it did today: With Tom Brady the decisive victor.
“The NFL is definitely fighting an uphill battle (in getting this overturned),’’ sports litigator Dan Werly said.
Deflategate’s next stage will be the Second Circuit Court of Appeals, where the NFL and Brady will present their respective cases before a panel of three judges. The NFL’s odds there are long: Just 7.5 percent of non-governmental cases heard by the Second Circuit are reversed, according to federal attorney and sports law expert Daniel Wallach.
Once the Second Circuit agrees to hear the case, the NFL will file its opening brief. Then, the NFLPA will respond, followed by the NFL’s own response. Then, both sides will present oral arguments and, finally, the panel will render its decision.
If heard on a standard timeline, this process will take about ten months. It’s possible the NFL is granted an expedited appeal that would take a little over half that, but given the court’s case load and the relative unimportance of a squabble over football air pressure, Wallach expects the Second Circuit won’t rush to hear it.
As was the case for Judge Berman, the panel’s job will not be to evaluate Brady’s guilt but whether the NFL acted within its powers by issuing a four-game suspension and subsequently upholding it – with the added wrinkle of deciding whether Judge Berman overstepped his bounds by vacating Goodell’s decision.
Judge Berman premised his opinion on two things as derived from the evidence and testimony presented to him over the month-long case: That Tom Brady had no “notice’’ of, or reason to expect, a four-game suspension for “general awareness’’ of a ball deflation scheme, and that the NFL conducted a “fundamentally unfair’’ arbitration by not making Wells Report co-lead investigator and NFL executive Jeff Pash available as a witness and not making investigator Ted Wells’ notes available to Brady and the NFLPA.
For each of these, Berman pointed to reams of Southern District precedent and case documents as informing his decision. And even those legal experts less enthusiastic about Brady’s prospects at having the decision upheld say he and the league are at a virtual draw.
“Before the hearings last week, I thought it was 80/20 the NFL was going to win, then the info started coming out that the judge wasn’t happy with the NFL and that dropped precipitously,’’ said University at Buffalo sports law professor Nellie Drew, a former NHL attorney. “I’d say they’re looking at a 50/50 shot (that it’s overturned).’’
Drew said her skepticism is rooted in Berman’s finding on the “notice’’ argument, saying Brady (“nobody’s fool,’’ she said) had reason to expect a significant punishment for awareness of intentional deflation of footballs to gain a competitive advantage.
Wallach, on the other hand, says the attention Berman paid to that component of his decision makes it a relative strength: Over 12 pages of citations of Southern District Court precedent and case documents, Berman outlines several reasons he feels Brady could not expect such a punishment.
And even if the panel finds fault with one or even a few of his assertions, if even one is upheld, he says, Brady will play.
“Even if some parts of the decision were to be disturbed on appeal, the entire decision will not be reversed and abandoned,’’ he said. “This is going to remain a Brady victory, and he’s not going to serve so much as one game of the suspension this year, next year, or ever.’’