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.