On July 14, 2016, the U.S. Court of Appeals for the Second Circuit denied Tom Brady’s petition for a rehearing en banc. Originally, two of three judges at the Second Circuit reinstated Brady’s four-game suspension. Brady was seeking a rehearing on the matter. This decision marks a victory for what might one of the final legal milestones for Deflategate. The decision by the Second Circuit is not surprising. The Federal Court of Appeals rarely grants rehearings save for particularly far-reaching and serious cases that implicate Constitutional rights.
Over the past year, New Englanders became extremely knowledgeable in the ideal gas law, the NFL’s Collective Bargain Agreement (“CBA”), and the role of a Commissioner in pro sports. While the Deflategate controversy is a personal subject for many of us, possibly impinging on our personal moral principles of right and wrong, the legal issue is relatively narrow. In simple terms, this is a dispute of the agreement the NFL players made with the team owners. Article 46 of the CBA allows Commissioner Roger Goodell to serve as fact-finder, judge, and arbitrator. Agree with it or not, this is what the players agreed to several years ago. Making matters worse is that facts determined in arbitration are beyond the scope of judicial review. As such, most legal arguments following arbitration must be related to the fairness of the process of arbitration, not the facts that led to case presented for arbitration.
Therefore, Brady’s legal argument focused on Goodell and the League’s inability to be consistent with the application of their own rules and inadequate notice of particular rules. To prove the Commissioner is guilty of legal wrongdoing, the party petitioning for relief must prove that the Commission behaved arbitrarily and capriciously. Despite how Patriots fans may feel, this legal standard is quite difficult to prove. After the finding denying the en banc hearing, the only legal recourse that Brady possesses is to petition the Supreme Court.
The likelihood of success here is similarly slim. Brady will be looking for a stay of his suspension as well as a writ of certiorari. Stays granted by the Supreme Court are rare and the average time a decision is reached on a stay is random, taking days or months. Justice Ginsberg is the circuit justice for the Second Circuit. Therefore, she will be the judge ruling on whether or not Brady receives a stay. Like writs of certiorari, legal stays from the United States Supreme Court are exceedingly rare. Brady will have to convince Justice Ginsberg that the case deserves to be heard by the Court as a legal matter and that he will suffer irreparable harm.
The legal road for Brady ahead is a tough one, but not impossible. Still, it seems like Jimmy Garoppolo will be the Patriots starting quarterback on September 11, 2016.
It is interesting to note that lawsuits relating to rule-based consistency frequently happen in the NFL, but not other sports leagues. Unlike the rest of the commissioners of the “Big Four” major sports leagues, Roger Goodell is not a lawyer. In this day and age, one can wonder how much longer the NFL can feasibly continue to run their business without an individual with legal training and the ability to comprehend laws, rules and statutes in order to maintain regular consistency.
Many other state agencies and private employers operate under their own sets of rules and regulations similar to the NFL. Insurance agencies have equally complex coding and procedures. The rules and regulations developed by these entities can often be written in legalese that is hard to comprehend.

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