As expected, Patriots quarterback Tom Brady has decided to continue to fight his four-game suspension arising from the #Deflategate controversy.
On Monday, Brady and the NFL Players Association filed a 15-page petition for a rehearing before the original three-judge panel or a rehearing before the full U.S. Court of Appeals for the Second Circuit.
The assault against Commissioner Roger Goodell’s decision begins quickly in the documents filed by the lawyers, accusing Goodell of “falsely portray[ing]” the Ted Wells investigation as independent and calling Goodell’s internal appeal ruling “biased, agenda-driven, and self-approving.” The petition also claims that the ruling from a divided three-judge panel “will fuel unpredictability in labor arbitrations everywhere and make labor arbitration increasingly capricious and undesirable for employers and employees alike.”
Tracking the dissenting opinion in the underlying ruling from Chief Judge Robert A. Katzmann, the petition points to the fact that Goodell’s conclusion on appeal was based on “new grounds that were not part of the disciplinary decision” and that Goodell “completely ignored the collectively bargained schedule of penalties for equipment-related violations.” The petition specifically emphasizes Judge Katzmann’s comparison of football deflation to the use of Stickum, which triggers only a four-figure fine for a first offense, not a suspension.
The problem, as argued by the petition, isn’t that Goodell considered the Stickum comparison and rejected it but that Goodell never even mentioned it, relying instead only on the purported comparison between deflation of football and the use of PEDs, which triggers a four-game suspension for a first offense.
“Under the panel majority’s misguided approach,” the petition argues, “an arbitrator is now free to ignore critical provisions a CBA reflecting collectively bargained penalties.”
It remains to be seen whether that’s enough to trigger a rehearing. For a rehearing before the full Second Circuit, at least seven of the 13 active judges must agree to do it. Presumably, the Chief Judge counts as Vote No. 1.