The U.S. Court of Appeals for the Second Circuit in New York has denied New England Patriots quarterback Tom Brady’s petition for a hearing en banc over his suspension for allegedly taking part in a plot to deflate footballs. As Patriots fans prepare for the first four games of the 2016 season without their perennial All-Pro leader, Brady has one remaining “Hail Mary” maneuver at his disposal before his suspension becomes unalterable: petition the U.S. Supreme Court for a stay of the Second Circuit’s decision and effectively hold Brady’s suspension in abeyance until the Supreme Court decides whether to grant review of the entire Brady case. Brady must file his petition by October 13.

The 13 active judges of the Second Circuit found no legal basis to interfere with the 2-1 decision of the Circuit’s three-judge panel’s previous ruling in favor of the NFL upholding NFL Commissioner Roger Goodell’s four-game suspension for Brady.

The decision reaffirmed the Commissioner’s unbridled powers under Article 46 of the collective bargaining agreement as Commissioner of the NFL and concluded that Goodell’s decision as an arbitrator properly confirmed his prior decision to suspend Brady in his role as Commissioner.

The Second Circuit decision moves the NFL closer to concluding its lengthy legal battle with Brady regarding his alleged knowledge of the use of footballs with reduced air pressure for the AFC Championship Game in January 2015.

Procedurally, Brady must petition the Second Circuit to stay its own decision, which likely will be refused. Following this likely step by the Second Circuit, Brady’s next option is to apply to Justice Ruth Bader Ginsburg for a stay and to petition all of the justices for a writ of certiorari. Judge Ginsburg, as the designated justice to handle requests for stays in cases arising from the Second Circuit, alone has the power to accept or deny Brady’s request or ask the NFL to file a response to Brady’s request for a stay. Justice Ginsburg also may seek the input of the other seven justices. If Brady were granted a stay by Justice Ginsburg, all aspects of the cases would be on hold until the Supreme Court renders its decision on Brady’s petition seeking a full review by the court.

If a stay is granted, and if four of the justices grant Brady’s petition seeking certiorari, the case likely will not be heard until the spring of 2017…preserving Brady’s ability to play during the 2016 season.

Unfortunately for Brady and his quest to avoid a four-game suspension to start the 2016 season, his chances of being granted a stay or having his petition for certiorari granted are both long shots at best. In order for Brady to succeed in his efforts, his lawyers must argue successfully that a legal basis exists for the country’s highest court’s consideration and that he will suffer irreparable harm if the stay is not granted.

While Brady’s lawyers prepare his best legal arguments and he and his teammates prepare for the 2016 season, Brady’s position behind center on opening day is extremely doubtful.

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Photo of Gregg E. Clifton Gregg E. Clifton

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in…

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major League Baseball teams in their salary arbitration matters and has represented NCAA and NAIA collegiate clients regarding rules compliance, investigatory matters and in disciplinary hearings. In addition, he has handled Title IX investigations and compliance issues for NCAA and NAIA member institutions. Mr. Clifton has also worked extensively in the area of agent regulation and enforcement in professional and college sports and regularly provides counsel on issues relating to NCAA and NAIA amateurism issues and athlete eligibility questions. He has also served as an expert witness in matters involving sports agents’ work and responsibilities, as well as athlete compensation issues.

Prior to joining Jackson Lewis, he spent six years as Chief Operating Officer and Vice President of Team Sports for Gaylord Sports Management. He also served as President of the Athlete and Entertainment Division for famed sports attorney Bob Woolf’s firm, Woolf Associates, in Boston.

Mr. Clifton began his career as an Associate at Jackson Lewis where he focused his practice on traditional labor law. He continues to counsel clients in the areas of collective bargaining negotiations, representation cases, arbitrations and National Labor Relations Board matters.

Mr. Clifton frequently serves as an expert speaker to law schools, including Harvard University, Boston College, Hofstra University and Arizona State University, and bar associations regarding sports law issues, including agent regulation and salary arbitration. He is also often cited as an expert source in national news media for his commentary and opinion on legal issues in sports.