It’s been more than a month since a three-judge panel heard the NFL’s appeal of their September slapdown by Judge Richard Berman.
While Judges Denny Chin, Barrington D. Parker and Robert Katzmann from the U.S. Court of Appeals for the Second Circuit continue deliberations, it’s worth doing a reset on what will happen next when the decision comes down.
In my experience since last January, Deflategate news and judicial rulings come like drone strikes and we wind up cramming for two hours trying to figure out what it means and what’s next.
So I went through some scenarios with my best Deflategate buddy, Michael McCann of SI.com and the University of New Hampshire.
When I called McCann, he basically said, “Slow down there, little fella…”
“It would be lightning speed for it to come this soon,” he pointed out. “Nobody knows when it’s coming down – it’s three judges, their clerks and everyone is sworn to secrecy – but my instinct is it won’t be soon. But you never know.”
Right. Better safe than sorry.
New England Patriots
SCENARIO ONE
Berman’s ruling is upheld and the NFL chooses to appeal.
THEN?
“This is the best case scenario for Brady,” said McCann. “The NFL could then petition for an ‘en banc’ proceeding. All of the judges on the Second Circuit would re-hear the case. En-banc review is rare. If the NFL is denied an ‘en banc’ review, they could petition the United States Supreme Court. It’s also unlikely the case would be accepted there first, because they hear about one percent of the cases that are put before them and also, because this case is not but also not very relevant to labor matters nationwide. Both of those scenarios could take – cautiously – a period of months before a decision is even made to hear or not.”
SCENARIO 2
Berman’s ruling is upheld, the NFL declines to appeal.
THEN
“It’s over. It’s done,” said McCann.
SCENARIO 3
Berman ruling overturned, Brady appeal.
THEN
“This is the worst-case scenario for Brady,” said McCann. “The NFLPA attorneys would then ask for a stay and that the suspension not be carried out until all appeals are exhausted. That could be months. Stays are extraordinary measures and are infrequently granted. In this instance, a decent case can be made that Brady would suffer irreparable harm since there is more than monetary damage that would be incurred if the suspension is reinstated. The money from the four games missed could be recouped if Brady wins his appeal but the NFL season is only 16 games and his absence would have other far-reaching impacts.”
SCENARIO 4
Berman ruling overturned and the case is remanded to Berman.
“The court affirming Berman was the most likely scenario going into the appeal but the (tone of the judges March 3) signaled that might not be the case,” said McCann. “But remand is a possibility. That’s the middle ground. Neither side wins outright. In a way, the NFL wins in the sense that court would be saying Judge Berman somehow got it wrong and needs a do-over. The suspension wouldn’t be carried out but a stay would have to be requested. Additionally, Berman signaled when he handed down his decision that there were other procedural missteps by the NFL he might inveigh in addition to the three he cited in his initial ruling if Berman had the case returned to him."
SCENARIO 5
Berman overturned, NFL and NFLPA broker a deal
“It seems an agreement wouldn’t be that hard to come up with and it would have happened by now if it were to happen,” McCann explained. "I agree that the NFL will want some admission from Brady that he acted inappropriately before they shaved games or vacated the suspension. That is not in the cards, in my opinion."
SCENARIO 6
Berman overturned, the case is returned to Goodell for a repeat of Brady’s arbitration hearing.
“Extremely unlikely and probably impossible,” said McCann. “Judge Berman was asked only to either vacate or confirm the arbitration award, nothing else.”