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So what does Tom Brady Jerseys do now? The judges of the U.S. Court of Appeals for the 2nd Circuit in New York City on Wednesday refused to reconsider a 2-1 decision made on April 25 that reinstated his four-game suspension for his role in Deflategate. The decision raises questions about Brady’s options and the effects of the decision on the coming NFL season. Here are some of the questions and their answers:
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What options does Brady have?
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Brady’s only option is the U.S. Supreme Court. If he is to avoid the four-game suspension, he must somehow convince four of the eight justices on the nation’s highest court that his plight is worthy of their consideration. And then he would need to convince five of them that the 2-1 decision against Brady was wrong and must be reversed.
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What are Brady’s chances in the Supreme Court?
His chances are not good. But if Brady has any hope, it’s thanks to his and the NFL Players Association’s decision to hire Ted Olson, one of the nation’s most successful and effective appellate lawyers. Olson led Brady’s effort to obtain rehearing in the 2nd Circuit, and his arguments were clearly a rehearsal for the trip to the Supreme Court. If anyone can transform a dispute about air pressure in footballs into a legal issue worthy of Supreme Court consideration, it is Olson.
So what will Olson argue?
He will argue, as he argued in the rehearing effort, that the 2-1 ruling could lead to the destruction of labor arbitration, a pillar of the American economy that must be preserved and can be saved only by a decision for Brady and against commissioner Roger Goodell and the NFL. Brady and his team will say that, during the arbitration appeal process, Goodell unfairly moved the goalposts by punishing Brady not just for the original alleged crime (ball deflation), but by adding a second charge of misconduct stemming from Brady’s refusal to cooperate with NFL investigators and his destruction of his cell phone. That ability to add charges mid-arbitration, Olson will say, sets a dangerous precedent. Olson will also argue that the NFL violated Brady’s rights by refusing to give his lawyers access to the notes that NFL investigators took during the Wells investigation.
Does all the hoopla around the case affect its odds of being heard?
It’s uncertain, but Brady’s celebrity may be helpful in this quest. Even justices of the Supreme Court can be affected by the presence of the most recognizable player in the nation’s most popular sport.
Can Brady and his lawyer stop the suspension while they appeal to the Supreme Court?
Yes. Brady’s legal team is likely to file what is known as an “application for a stay.” A stay would preserve Brady’s right to play while the Supreme Court decides what to do with his case. The request for a stay can be filed anytime before the season begins Sept. 11. Under the rules of the Supreme Court, the request must include assertions that there is a “reasonable probability” that four justices will vote to accept the case for consideration, that there is a “fair prospect” that five justices will support Brady in the ultimate decision, and that “irreparable harm” will result if there is no stay. It’s a stiff set of requirements, but it is far from impossible. Brady has already had more support from judges than most experts expected.
Who decides whether to grant a stay to Brady?
It’s a two-step process. Brady’s lawyers must first present their application to the Court of Appeals for the 2nd Circuit, according to William Baude, a law professor at the University of Chicago Law School who studies federal courts and who served as a clerk to John Roberts, the chief justice of the Supreme Court. The judges of this court, having already made their 2-1 decision against Brady and then refused his request for reconsideration, are unlikely to grant a stay.
The next step is to apply to Justice Ruth Bader Ginsburg of the high court. She catches any requests for stays in cases that come to the high court from the 2nd Circuit Court of Appeals. She can decide the issue herself. She could quickly deny it, or she may ask the NFL for a response to Brady’s application for a stay, an action that would be highly encouraging for Brady. Her decision would then be based on legal briefs submitted by Brady and by the NFL. There would be no hearing in open court. If Ginsburg senses that other justices want to be involved in the decision on the stay, she can refer the issue to the other seven justices. “The justices are most collegial on these issues,” says Jonathan Massey, a highly regarded appellate lawyer who is representing Ed O’Bannon in his attempt to obtain consideration from the Supreme Court in his case against the NCAA. “They will not consider something alone if they know other justices are interested.” If Ginsburg sends the case to the full court, Brady would need five votes to obtain the stay.
Would this decision likely be made before the season begins?
Yes, the justices make decisions on stays quickly and efficiently. Brady’s lawyers will explain to the court that a decision on a stay must be made before Week 1, when the suspension begins, or else the case will be moot. “The court makes these rulings expeditiously,” attorney Massey said. “They will know that they must rule before the first game.”
When would the justices decide on whether to hear the case?
Brady’s request for Supreme Court consideration, known as a “petition for certiorari,” must be filed by Oct. 11. The NFL must file its reply within 35 days of the filing of Brady’s petition. A decision on whether to accept the case for consideration would then be likely around the end of the NFL regular season or after the first of the year.
So is it possible that Brady’s suspension could be stayed for now — allowing him to play in Weeks 1-4 — but if the court ultimately declines to hear his case, he could be forced to miss key games late in the season?
It is possible, but unlikely. On a case as high-profile as this, Ginsburg is unlikely to issue a stay without the support of her colleagues. In other words, a stay points toward the Supreme Court likely agreeing to accept the case for a decision on all of the issues raised in the litigation.
If the court does decide to take Brady’s case, then, would he be able to play the whole season?
Yes. Filing the necessary briefs, scheduling the oral arguments and preparing a decision with concurring opinions and dissents is a process that is likely to continue well into 2017. If Brady succeeds in obtaining a stay — and then a decision to have his case heard — he will succeed in playing the entire season while the nation’s highest tribunal ponders the air pressure of footballs.