UPDATE: On July 15, 2016, Tom Brady announced that he will not be requesting that the Supreme Court hear the case.  He’ll serve his suspension the first four games of the NFL season.

On July 12, 2016, the Second Circuit Court of Appeals denied New England Patriots quarterback Tom Brady and the NFL Players Association’s request for en banc rehearing in the Deflategate case, National Football Management Council v. National Football Players Association, 820 F.3d 527 (2nd Cir. 2016).  Sports fans and legal commentators have been weighing in with their opinions regarding the next steps here.  As explained below, despite the Second Circuit Court of Appeal’s ruling today, there is a very real chance that Tom Brady plays on September 11, 2016, when the Patriots take on the Cardinals in Arizona on Sunday Night Football.

With the denial of the request for rehearing, the clock starts on the Second Circuit Court of Appeals to enter a mandate.  Under Federal Rule of Appellate Procedure 41(b), a mandate must issue seven days after the petition for rehearing is denied.  Unless and until a mandate issues, U.S. District Court Judge Richard M. Berman’s decision vacating the NFL’s suspension of Tom Brady is still effective. While the Second Circuit Court of Appeals has determined that decision must be reversed, the reversal does not occur until the case is remanded for the District Court to actually reverse its decision.   Once a mandate issues, the District Court will comply with the appellate court’s decision, entering an order reversing its decision and reinstating Brady’s suspension within the next 30-45 days.

In order to avoid serving his suspension, Brady has two options: (1) he can seek to delay entry of the mandate; or (2) he can seek a stay of the entire case pending an appeal to the United States Supreme Court.   Brady’s first step is to file a Rule 41(d)(2) request with the Second Circuit Court of Appeals to have the court delay entry of the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court.  To prevail on this motion, Brady must show there is a “reasonable likelihood” that certiorari will be granted and that he will suffer irreparable harm if the mandate enters.

There can be no dispute that Brady will suffer irreparable harm if the mandate issues; Brady will serve a four game suspension.   Moreover, if Brady serves that suspension, his appeal will be moot.  Accordingly, this factor strongly supports the entry of an order staying the issuance of the mandate pending an appeal to the United States Supreme Court.  With the irreparable harm element satisfied, the stay request will turn on the “likelihood” that the Supreme Court will accept review.

The odds of the Supreme Court accepting review in any given case are less than 2%, but this is not any given case.   First, although the case involves the NFL’s rules regarding the inflation of footballs, legally the case turns on complex labor law issues.   Reasonable lawyers and judges disagree on the application of the law here; after all, the Chief Judge of Second Circuit Court of Appeals filed a dissenting opinion in this very case.  Second, while there is currently not a split amongst the circuit courts regarding the law, Minnesota Vikings running back Adrian Peterson has appealed his suspension from the NFL to the Eighth Circuit Court of Appeals.   That appeal is briefed and argued, but no decision has been rendered.  There is a very real possibility that once that decision issues there will be a split between the circuit courts regarding what deference should be given to an arbitrator’s decision on appeal.  Third, Tom Brady recently retained attorney Theodore Olsen to handle his appeal.  Mr. Olsen is a former U.S. Solicitor General known for his success in high-profile United States Supreme Court cases, including Citizens United and Bush v. Gore. He is the nation’s most well-known Supreme Court practitioner.   For at least these three reasons, Brady’s appeal has a significantly better chance of being heard by the United States Supreme Court than the standard case.

Critically, in considering whether a mandate should be delayed pending Supreme Court appeal, the law recognizes that the movant (here Brady) need not establish a high likelihood that the Court will take the case.  The standard only requires a “reasonable likelihood.”  Considering the fact that there is no question that irreparable harm will occur if the mandate issues, in my opinion Brady have a fair chance of obtaining a stay from the Second Circuit Court of Appeals. If the Second Circuit Court of Appeals stays the entry of a mandate, Brady will need to file his request for certiorari in the Supreme Court within 30 days.  Once that request is filed, the stay automatically extends until the Supreme Court rules on the request for certiorari.

If the Second Circuit Court of Appeals were to deny Brady’s request, then Brady would seek a stay of the Second Circuit Court of Appeals’ decision from the Supreme Court.  Justice Ginsberg would rule on this request, applying largely the same standard that the Second Circuit Court of Appeals applied in considering whether to stay entry of the mandate.

If Brady can convince either the Second Circuit Court of Appeals or Justice Ginsberg that his request for certiorari has merit, his suspension will be stayed pending the Supreme Court’s decision on his request for certiorari.  The Supreme Court takes between six and nine months to rule on any request for certiorari.   Accordingly, if a stay is entered, Brady will play the entire 2016 NFL season and we’ll be discussing this all again next offseason.

If you have any questions or comments, please contact Gregory B. Collins.