Brady’s Quest to Vacate Four-Game Suspension is Running Out of Air as Second Circuit Denies Request for Rehearing

On July 13, 2016, the Second Circuit denied New England Patriots quarterback Tom Brady and the NFL Player Association’s request for a rehearing in their deflategate case. In the end, this decision came as no surprise for a case that has dominated both legal and sports headlines ever since the NFL handed down a four-game suspension to Brady for his alleged role in deflating footballs against the Indianapolis Colts in a 2015 playoff game.

Previously, the Second Circuit voted 2-1 to uphold the four-game suspension after it was previously vacated by the lower trial court for lack of notice to Brady this conduct could lead to a suspension. The panel considered Brady’s request to review that decision and rehear the case, but in one short order from the court denied the petition. The most crucial argument presented by Brady and the NFLPA was the fact that Goodell sat as an arbitrator in the internal league appeal over Brady’s suspension which was a violation of the rights and expectations provided by the NFL’s Collective Bargaining Agreement. In addition, Brady’s petition seemed to have plenty of supporters from legal professionals to the New England Patriots themselves who, in a shocking move, opted to go against the NFL in court. However, in the end the Second Circuit did not see enough to cross the high threshold a decision to rehear a case en banc requires.

In the short term, the Second Circuit’s denial leaves Brady and the NFLPA with very little options. It leaves Brady’s four-game suspension intact meaning he will likely serve his suspension this season. The only other option is to appeal to the Supreme Court and obtain a stay, but this seems unlikely to occur before the Patriots open the 2016 season in Arizona against the Cardinals on September 11th.

The Second Circuit’s decision to deny a rehearing could lead to significant changes to the NFL’s next Collective Bargaining Agreement with the NFLPA. The existing CBA expires in 2020 with negotiations on a new CBA to begin in the very near future and, by all accounts, these negotiations are expected to be contentious. Experts believe that the NFLPA will push for drastic changes to the powers Goodell holds especially in matters of player discipline. Likewise, the NFLPA will likely want “conduct detrimental to the league” to be more well defined and much less discretionary. These issues are not new to Brady as we have seen similar public scrutiny in cases involving Minnesota Vikings running back Adrian Peterson and former Baltimore Ravens running back Ray Rice. It seems unlikely, but Goodell should be open to the changes as the public scrutiny and moral burden which has been imposed on the NFL has been overwhelming and in the vast majority of industries no binding arbitrator is someone who runs the company.

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