What’s next in the Brady Deflategate appeal?
By Sheilla Dingus
July 14, 2016
Last week, as Patriots fans grew more and more anxious about the silence in the Second Circuit Court of Appeals regarding Tom Brady’s request for an en banc hearing, I began digging around in the dockets of the Court and discovered that 32 en banc petitions had been submitted on or after April 25, the day Judges Parker and Chin overturned Judge Berman’s ruling, reinstating Roger Goodell and the NFL’s suspension on the quarterback. Of these, four were rejected almost immediately, with 28 remaining in the cue. Monday’s update revealed that the Court had indeed started reviewing these requests; an additional seven were denied. Only two days later an ominous notice suddenly appeared at 9:28 a.m. The sound of silence had been broken.
In barely over two lines, the hopes of Patriots Nation were deflated once again. Throughout the course of the day, numerous reports surfaced, most pretty much conceding that back-up quarterback Jimmy Garoppolo will be playing the first four games for the Patriots this season. But not so fast! Brady is not yet out of options. Before New England’s starter sits a few more things will be taking place.
Brady’s next step will be to request a stay
Although the Second Circuit denied Brady’s en banc petition, seven days must elapse before the court order is mandated, or final. During this time he is expected to request a stay from the Court.
The most likely outcome of a stay request to the Second Circuit would be a denial, since the same judges turned down a petition to rehear his case.
Should this occur, Brady would ask the Supreme Court for a stay, and this will most likely be handled by Ruth Bader Ginsburg, the justice assigned to the Second Circuit who has the authority to act as a surrogate of SCOTUS.
Noted appellate, sports law and gaming attorney Daniel Wallach reported that Ginsburg is “a strong proponent of women’s rights, individual rights, and presumably the rights of organized labor,” and that Tom Brady “couldn’t be in better hands. . .I believe it will be her, and her alone as to the final decision as to whether Tom Brady is able to play games one through four.”
Case law has established four general criteria that the applicant normally must satisfy in order for the Court to grant a stay. They are: 1. that there is a “reasonable probability” that four Justices will grant certiorari, or agree to review the merits of the case; 2. that there is a “fair prospect” that a majority of the Court will conclude upon review that the decision below on the merits was erroneous; 3. that irreparable harm will result from the denial of the stay; 4. finally, in a close case, the Circuit Justice may find it appropriate to balance the equities, by exploring the relative harms to the applicant and respondent, as well as the interests of the public at large