For now, neither the NFL Players Association nor Tom Brady have committed to the notion that an appeal will be filed of Brady’s four-game suspension to the U.S. Supreme Court. Undoubtedly, an appeal will be pursued.
Apart from attorney Ted Olson’s explanation to PFT Live in May that “we are all very, very much committed to seeing that Tom Brady gets the justice which he is owed in this case, whatever it takes” and Brady’s consistent resolve to continue fight, the NFLPA needs to continue the fight because of this specific case’s impact in future fights.
“Despite today’s result, the track record of this League office when it comes to matters of player discipline is bad for our business and bad for our game,” the NFLPA said in its statement issued in response to the latest Brady decision. “We have a broken system that must be fixed.”
Fixing a broken system becomes much harder if the end result of the Brady case is that Commissioner Roger Goodell has the power, for example, to move the goalposts during the appeal process, changing the basis for a suspension and leaving the player with no effective means to appeal a revised decision or, for example, to completely ignore specific agreements made between the parties regarding equipment violations that trigger only a fine or, for example, to flat-out deny the player and the NFLPA access to key evidence like interview notes in order to properly frame a defense to an underlying finding of cheating based on scientific evidence that can’t be rigorously tested without having precise information about when and how PSI data was gathered.
Ultimately, the Commissioner’s lingering power over player discipline would have to be surrendered at the bargaining table. The greater that power, the more the NFL will want in exchange for an agreement to refer these cases to a neutral arbitrator. It therefore becomes critical for the NFLPA, in its role as the representative of all current and future players, to take every step necessary to reduce that power, which in turn will make it easier to negotiate a new system that transfers the Commissioner’s remaining authority over player discipline to a third party.
That’s why the NFLPA has no choice but to file the appeal.
And for those of you who may say, “Doesn’t the Supreme Court have better things to do than to spend time on a case about air in footballs?”, the answer is a clear and unequivocal no. The Supreme Court exists as the final voice on all cases and controversies filed in the federal and state court systems, and plenty of lawsuits involving matters far more mundane and trivial than a four-game suspension of a starting NFL quarterback have taken up the Supreme Court’s time in the 240 years our nation has existed.
Moreover, the case has a significant potential impact in other industries that rely on private arbitration agreements, since the principles expressed in the appeals court ruling become the law of the land, at least within the states that fall within the Second Circuit.
Apart from the impact of the precedent for the NFL and other industries, a case like this one becomes beneficial to the Supreme Court and the entire governmental process because it gives people who otherwise wouldn’t care about the Supreme Court a reason to learn how the system works and to pay attention to the process. While that hardly is one of the standards for the Supreme Court to employ when deciding whether to take up a case, it’s an incidental advantage of accepting an appeal in a high-profile dispute.
Brady and the NFLPA nevertheless face long odds at this point. But they lose nothing by proceeding, and they potentially gain plenty if the Supreme Court decides to take up the case.