Tom Brady’s Legal Team Set To Appeal Deflate-gate Ruling

More than a year later, the fight over the New England Patriots’ ‘Deflate-gate’ controversy continues.

Tom Brady’s Legal Team Set To Appeal Deflate-gate Ruling

Patriots quarterback Tom Brady’s legal team, now led by former US Solicitor General Theodore Olson, has stated it will file an en banc appeal to the US Court of Appeals for the Second Circuit on Monday, demanding that the court review its decision to reinstate Brady’s four-game suspension for his involvement in Deflate-gate, the scandal over the Patriots using deflated footballs in the 2015 AFC Championship game against the Indianapolis Colts. Brady has denied having played any role in the scandal.

Olson, who has argued past major cases like Bush v. Gore and California’s “Prop 8” amendment banning same-sex marriage, announced the news in an interview with ABC.

“The facts here are so drastic, and so apparent, that the court should rehear it,” Olson told ABC.

An en banc appeal is one in which the case at hand is heard by all the judges on the bench, rather than simply a panel of judges. In this case, the appeal will be reviewed by all 13 active judges in the Second Circuit, and Brady will need at least seven judges to agree that his appeal has merit and the case deserves to be heard in front of the entire roster of active judges. The judges generally take about 4-6 weeks to assess whether to hear an en banc appeal or not.

The quarterback’s suspension would be temporarily maintained if he were to receive his en banc hearing, which means it’s possible he could play beginning this fall if the hearing was still tied up in the courts. Realistically, an en banc hearing could be completed by the time the Patriots begin their regular season Sept. 11 at Arizona.

Among the 13 judges who will review the appeal are chief judge Robert Katzmann and Denny Chin, two of the three judges who heard the NFL’s appeal of federal judge Richard Berman’s decision on March 3. Chin and Judge Barrington Parker ruled last month to overturn Berman and reinstate Brady’s suspension, while Katzmann dissented and stated that Berman acted properly in vacating Brady’s punishment last September.

Assuming Katzmann and Chin do not change their rulings, Brady’s legal team will have to convince six of the remaining 11 judges that their case should be reviewed again.

The probability of getting an en banc hearing granted is very low. Between 2000-10, only eight of 27,856 appeals in the Second Circuit, or less than .03 percent, were granted an en banc hearing, although not every appeal filed for en banc.

The Second Circuit Court is also notorious for rejecting en banc appeals and respecting the decisions of its three-judge panels. The Second Circuit “proceeded to a full hearing en banc only in rare and exceptional circumstances,” Katzmann wrote in a 2008 decision.

Last year, Berman ruled that NFL Commissioner Roger Goodell overstepped his authority in handing Brady a four-game suspension. Berman vacated the punishment and ended up allowing Brady to play the entire 2015 season.

However, the NFL appealed that decision, with Chin and Parker ruling in favor of the NFL, claiming that Goodell “properly exercised his broad discretion under the collective bargaining agreement” to punish Brady, and that “his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness.”

“Our role is not to determine for ourselves whether Brady participated in a scheme to deflate footballs or whether the suspension imposed by the Commissioner should have been for three games or five games or none at all,” the judges wrote. “Nor is it our role to second-guess the arbitrator’s procedural rulings. Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act.”

PHOTO: FOXBORO, MA – NOVEMBER 23: Tom Brady #12 of the New England Patriots throws during the third quarter against the Buffalo Bills at Gillette Stadium on November 23, 2015 in Foxboro, Massachusetts. (Photo by Maddie Meyer/Getty Images)