In light of the filing on May 23, 2016, by Tom Brady (hereinafter “#12”) of a “Petition for Panel Rehearing or Rehearing En Banc” (hereinafter the “Petition”), and the publicity surrounding it, I thought I’d take a stab at explaining what it really is, since most of the sports reporters (even the better and well informed) tend to butcher it a bit.  Or maybe I’m just sort of an academic snob.

To understand, we need a bit of background about the federal judicial system.  The United States has a bunch of courts which are quite separate from courts of the different States—such as Maine state courts.  #12’s case is in the federal court system.  That system has three levels:  One or more “District Courts” in every State (Maine has only one federal District Court, with a northern and southern division—but Maine has just one District Court—unlike New York which has 4 District Courts), a “United States Court of Appeals” to which a disgruntled party can appeal from a District Court, and the “United States Supreme Court,” above that.  Contrary to what some think, if a party doesn’t like how the Court of Appeals ruled, there is no right to appeal to the Supreme Court.  All the party can do is file a “Petition for a Writ of Certiorari.”  That lingo will surely come up in #12’s case as soon as the Court of Appeals is finally finished with its work.

A Petition for a Writ of Certiorari, or “Cert Petition” as it is often called, is literally a formal written request to the Supreme Court asking it to even take a look at whether the Court of Appeals messed up.  Less than 2% of Cert Petition’s are granted (usually only about 1%–and much less than that if you factor in “pro se” petitions written and sent in by prisoners without a lawyer).  So if a party doesn’t like how the Court of Appeals finally ruled, that party is almost always SOL.  People have already began wondering if the United States Supreme Court will agree to hear #12’s case, since whether #12 eventually wins at the Court of Appeals, or whether the Bad Guy wins, the losing side will certainly at least consider filing a Cert Petition.

A Cert Petition is sort of an odd duck in terms of court filings, since its purpose is not to argue for or against a position (though usually it does implicitly), but to argue directly that the case is important enough for some reason to be one of the few entertained by the Supreme Court.  If the Supreme Court agrees to hear the case, then the parties file real briefs arguing their positions.  Most scholars think for various reasons (beyond the scope of this article to explain) that there is little chance the Supreme Court will hear #12’s case, regardless of how it finally turns out in the Court of Appeals.  After reading the Petition (for Panel Rehearing or Rehearing En Banc) just filed by #12, I think there might be as much as a 33% chance given the high quality of lawyering on both sides, the high profile nature of the case, and the manner that #12’s lawyers have succeeded in making this case into an issue, generally, about the law of the collective bargaining agreement labor arbitration process pertinent to hundreds and hundreds of “run of the mill” labor arbitrations, and not just this one bizarre deflate-gate on-going soap opera.  But for either side, it will be a long-shot to succeed in obtaining Supreme Court review.

But back to the U.S. Court of Appeals, where the case is now.

The U.S. Court of Appeals is itself divided up into different “Circuits.”  The term “Circuit” dates back to days when federal appellate court judges would actually ride around on horses to hear cases, riding the “circuit.”  There are 13 different Circuits, 12 of which are defined geographical and one of which, oddly enough (and confusingly enough) called the “Federal Circuit,” is defined mostly by of what sort of cases it hears (namely, e.g., international trade cases, government contract stuff, and an assortment of other esoteric matters).

The 11 of the 12 geographically defined federal circuit courts each includes several states.  Maine, e.g., is in the First Circuit Court of Appeals, together with Massachusetts, New Hampshire, Rhode Island, and Puerto Rico (yes, I know, Puerto Rico is not a State—but it has a federal District Court, nonetheless).  #12’s case was brought initially in the Southern District Court of New York, and New York, together with Vermont and Connecticut, are in the Second Circuit.  Hence, when the Bad Guy appealed the District Court’s decision in favor of #12, he appealed to the U.S. Court of Appeals for the Second Circuit, where the case is today.

Each Circuit of the U.S. Court of Appeals employs many full-time, so-called “active” judges.  There are, as the news has reported, 13 such judges in the Second Circuit, which is important to the “en banc” side of things, now, since #12’s Petition is essentially a formal request to the Second Circuit that all 13 of its active judges reconsider the decision at this point (“active” in this context means, basically, not semi-retired; each circuit has many semi-retired judges who continue to hear cases, just lighter loads).  Indeed, the Petition just filed by #12 is a little bit like a Cert Petition in the sense that a party has no right to en banc review by circuit court judges.  Instead, in his Petition, #12 has to convince a majority of the active judges in the Second Circuit (namely, 7 of them) that all 13 judges should now take a look at this.

Previously, thus far in the federal court appeal process, only 3 of the 13 judges in the Second Circuit have considered the case.  Those 3 judges, called a “panel,” were selected at random after the appeal was filed in the Second Circuit, to hear the case.  Almost all U. S. Court of Appeals decisions are heard and decided in the first instance by a panel of 3 judges.  In such appeals, there are no new witnesses, no trials, no new exhibits.  Instead, each side files lengthy written briefs that refer to materials that the parties already introduced into the fray at the level of the District Court.  Then the panel of 3 judges, by majority vote, decides if the District Court got it right.  In this case, two judges on the panel thought that the District Court wrongly ruled for #12, and a third judge ruled that the District Court correctly ruled for #12.  But since a majority of the panel ruled against #12, at this point, he is losing.  That is why #12’s next play called was to file his Petition for en banc review.

The Petition that #12 just threw at the Second Circuit is not very long.  In fact, by the Second Circuit’s rule book, it is only 15 pages of fairly large print.  And like a Cert Petition, #12’s Petition basically just argues that the issues of law, generally, at stake in this case, are of sufficiently broad importance for labor law generally, that the matter is deserving of the close attention of all 13 judges.  #12’s Petition also argues that the panel’s decision (well, the decision of the 2 judges in the majority of the panel who ruled against him) conflicts with Supreme Court precedent.  Circuit courts are required to abide by Supreme Court precedent, even if the circuit court judges don’t like it, and so if a party can show that a panel somehow made a ruling inconsistent with Supreme Court precedent, the case will probably be reheard.

Note that at this stage of the game, #12 is only asking the officials to take a second look.  If he succeeds in getting 7 of the 13 circuit court judges to agree everyone should take another look, then that doesn’t mean he wins the game.  It just means all 13 judges will then have to read all of these things very carefully and decide whether a majority of the panel already ruled correctly.  In other words, even if 7 judges think the matter should be re-examined, it doesn’t mean that in the end even those 7 judges will rule for #12.  This is how slow the game is played.

Under Second Circuit rules, the Bad Guy is not allowed to file a response to the Petition unless the Second Circuit orders it.  If behind the scenes it looks like 7 or more judges are inclined to grant the Petition, the Second Circuit will probably order the Bad Guy to file a short response saying why all 13 judges should not reexamine the decision.  Or, out of the blue, the Second Circuit might just issue an order granting the Petition without asking to hear first again from the Bad Guy.  Or out of the blue the Second Circuit might issue a denial of the Petition, and the game in the Court of Appeals will be over.

And how long before this will happen?

Most likely at least a month, and if the Petition is eventually granted, the Second Circuit might order additional briefs (or it might not).

In any event, if the Petition is granted, and all 13 judges have to get into the nuts and bolts of the case, it will likely be at least 6 months (maybe closer to 10) before the Second Circuit issues its en banc opinion (i.e., the decision of the Second Circuit based on the views of all 13 judges).  And, like at the panel level, a majority rules.  So, e.g., if the case is heard en banc, the judges might split 9 to 4 against #12, in which case he loses—at the Court of Appeals.  And would then have to decide whether to file a Cert Petition asking for Supreme Court review.

Even if the Second Circuit denies the Petition, and there is no en banc review, #12 is still permitted to file a Cert Petition after that.  But at that point #12 is getting closer to a Hail Mary.  If a Cert Petition is denied, the game is really over.

And because it may take months to sort out things still at the Second Circuit, and because the season is only 3 months away, the parties will be arguing vigorously soon whether the panel’s decision will be “stayed” (i.e., put on hold) until the Second Circuit is all done with this.  Otherwise, if #12 is forced to sit out 4 games, in a fairly real sense the case is moot and the Bad Guy will have won.  In other words, if #12 is forced to sit out 4 games, what is the point of plowing on for a ruling that he should not have been forced to sit on the bench?  Indeed, there is a doctrine in federal law called “mootness” so that if #12 really is forced to sit out before all of the legal fighting is totally over, the case may be “mooted” anyway, which is grounds for dismissing the whole thing.  That will probably be a basis upon which #12 tries to convince the Second Circuit to stay the panel opinion, so he doesn’t have to sit out games before there is a final, final, final ruling.

Most petitions for rehearing are denied rather quickly.  The official position of the Second Circuit is that it will not bother all 13 judges unless the 3-judge panel decision conflicts with a decision of the Supreme Court, or conflicts with “authoritative decisions” of other Circuits.  Or, unless, also, the “proceeding involves one or more questions of exceptional importance.”  This latter standard is pretty vague, and leaves the door open behind the scenes for the judges to pretty much do what they want, namely, hear the case en banc, or say they have had enough of it.

In his Petition, #12’s lawyers argue (deftly, I might add) that the panel’s decision contradicts the rule stated in a 2010 U.S. Supreme Court case called Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.  #12 says that the AnimalFeeds case says that a labor arbitrator’s authority depends on an affirmative grant of authority in the collective bargaining agreement (“CBA”), not the CBA’s silence on the arbitrator’s power.

Way back when all this started, #12 appealed his original 4-game suspension, and when he did, the Bad Guy acted as the arbitrator deciding that appeal.  When the Bad Guy heard #12’s appeal, the Bad Guy reassessed the factual basis for the suspension.  Although the NFL’s CBA says nothing about the Bad Guy’s power to do this, the majority of the panel (according to #12’s argument) inferred that the Bad Guy did have this power under the CBA because nothing in the CBA said he didn’t.  This contradicts the AnimalFeeds case because according to it, the Bad Guy only had this power if the CBA says he does, not if the CBA says nothing about it.

Incidentally, according to the Petition, the original suspension was based on #12’s alleged “general awareness” of the actions of others in deflating the balls, as well as his decision not to cooperate by declining to produce his private electronic communications.  The Bad Guy upheld the suspension on a different basis, namely, #12’s alleged “participation” in a conspiratorial scheme, including giving gifts to the deflators.  According to the Petition, if the Bad Guy upheld the suspension, the Bad Guy could only have done so based on the original reason for the suspension, not this different reason (since the CBA doesn’t  give the Bad Guy the power to reassess the factual basis for a suspension).

The Petition also cites some authority for the view that a “bedrock principle” of labor law is that the correctness of punishment must stand or fall upon the reason given at the time of the giving of the punishment—rather than a “post hoc rationalization,” such as that given by the Bad Guy.  The Petition argues that all 13 judges need to look at this, also, for this reason.

Finally, the Petition explains that at least one other Circuit has held that if an arbitrator fails to discuss a relevant term of the CBA, and offers no clear basis for how he decided the matter without considering that term, the decision should be vacated.  In this case, #12 points out that the CBA contains an entire schedule of penalties for equipment-related misconduct that would and should have at least provided relevant benchmarks for the Bad Guy in deciding whether to reduce the 4-game suspension, or eliminate it and replace it with a fine, for example.  Yet, says #12, the majority of the panel let the Bad Guy’s decision stand even though the Bad Guy did not even consider these other penalties or how they could or should influence the sanction for deflating footballs.  Instead, the Bad Guy looked to the penalty for steroid use, and never explained why that was more relevant than penalties for equipment-related violations.  Under the law, the Bad Guy should have at least considered these other relevant contract terms.  As #12’s Petition says:

[u]nder the panel majority’s misguided approach, an arbitrator is now free to ignore critical provisions of a CBA reflecting collectively bargained penalties.  This holding will create great uncertainty in labor arbitrations, as employers and employees reasonably assume and anticipate that an arbitrator will use a collectively bargained penalty schedule in determining the appropriate sanction in a particular case—or at least explain why he believes the penalty schedule is inpplicable.

So what is this talking head’s prediction?

I predict the Second Circuit will stay the current panel majority decision, thus allowing #12 to play at the start of this season.  I predict the Second Circuit will grant en banc review and that 7 judges will side with #12.  I predict the NFL will thereafter file a Cert Petition and the Supreme Court will deny it.  At that point, the final score will be:  12 federal judges for #12 (that includes the District Court judge who ruled for him, 7 Second Circuit judges who ruled for him, and at least 4 Supreme Court judges who decline to hear the case), and less than 12 federal judges for the Bad Guy.  #12 wins.[1]


[1] In the interest of fairness, the author of this blog must disclose that he is a life-long Denver Broncos fan, having gone to almost every home game since he was 3-years old in 1963, until he left for Maine in 1987.  Today he still has a Broncos license plate holder, Broncos hats, shirts, pants, floor mats, steering wheel cover, pens, socks, blankets, flags, wallet, mugs, orange food coloring for otherwise clear drinks, and he can’t even remember everything else.  However, other than the Broncos, the Patriots are his favorite team—which he knows in Patriot Nation is still treason.

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