On Monday, the
United States Court of Appeals for the Second Circuit officially denied Tom Brady’s Deflategate appeal.
Brady had filed for an appeal in April when the Second U.S. Circuit Court of Appeals had reinstated his suspension.
Now, almost 18 months after the Patriots’ footballs were found to be under-inflated during the 2014 AFC Championship game, Brady has one last hope: the U.S. Supreme Court.
Brady’s last chance of avoiding his four-game suspension is petitioning to the Supreme Court and Justice Ruth Bader Ginsburg. Brady would likely file for a stay and a “writ of certiorari,” according to Sports Illustrated’s Michael McCann, meaning the appeal would be suspended until Ginsburg and other justices review the case. According to McCann, a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law, it would also bar the NFL from imposing the suspension until the justices rule on certiorari.
However, some around the NFL and legal world say Brady’s chances of getting the Supreme Court to review his case are slim.
As McCann says, one of the reasons the Second U.S. Circuit Court of Appeals decided to deny Brady’s appeal is because it’s not a particularly compelling legal case. It’s less likely to appeal to the highest court in the country.
Furthermore, as McCann states, the Supreme Court rarely grants stays or writs of certiorari. McCann explains:
“Brady will cite Supreme Court precedent and contend, one, there is a ‘reasonable probability’ that at least four Supreme Court justices would grant certiorari and, two, there is a ‘fair prospect’ that at least five justices would rule for Brady. This is a very tall task for Brady. Justice Ginsburg knows that the Supreme Court denies certiorari approximately 99% of the time.
“Even more discouraging for Brady, new empirical research by Adam Feldman of Empirical SCOTUS suggests that the odds of certiorari are tougher than ever — particularly since the Supreme Court currently has only eight justices (so one less justice to vote for certiorari) due to the death of Justice Antonin Scalia and the protracted confirmation process of Merrick Garland, the Chief Judge of Court of Appeals for the District of Columbia and President Obama’s nominee to replace Justice Scalia.”
McCann does note that there are arguments Brady can make that could sway Ginsburg, but the chances are “slim.”
McCann isn’t the only one who feels this way. The Wall Street Journal spoke to Raffi Melkonian, an appellate litigator at Wright & Close LLP, who believes Brady’s chances of getting the Supreme Court to hear the case are “remote,” saying the case doesn’t seem to be an issue demanding the Court’s time.
WSJ also spoke to Howard Wasserman, a sports law and civil procedure scholar at Florida International University College of Law, who, like McCann, noted that the court’s “state of flux” won’t help Brady’s chances.
Furthermore, ESPN’s Kevin Seifert casts doubt in an opinion piece on how effective going to the Supreme Court would be for Brady and the Patriots.
Seifert writes (emphasis ours), “If Brady were to appeal, receive a stay and ultimately lose the case — his best-case scenario, many believe — the Patriots could lose him in the middle of a playoff push.” Seifert argues that Brady would be better off dropping the case and accepting the punishment at the start of the season rather than carrying it into the year.
Seifert raises another factor in this saga — even if Brady can convince the Supreme Court to grant him a stay and writ of certiorari, it would be another hurdle to re-argue the case and have them rule in his favour.
It’s not hopeless, as many of these experts note. Brady has gotten favourable rulings from Judge Richard Berman (when his suspension was over-turned in September) and from Robert Katzmann, chief judge of the Second Circuit, who voted to overturn the suspension in April, but lost in a 2-1 decision. McCann also notes that Brady’s highly respected legal team could make a swaying argument to be granted a stay.
Nonetheless, the odds are stacked against Brady to win this battle. While it may take several more weeks for there to be a conclusion to Deflategate, the end is in sight.
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