After Judge Richard Berman overturned the four-game suspension imposed by the NFL on Patriots quarterback Tom Brady, the league exercised its right to appeal the decision to the U.S. Court of Appeals for the Second Circuit, despite the grumblings of some who thought it was time to end it all and move on.
Now that the NFL has won round two, Brady and the NFL Players Association definitely should proceed with a request for a rehearing before the full court, for a variety of reasons — and regardless of whether anyone now argues that Brady and the NFLPA should take their lumps and let it be.
First, a request for rehearing (which must be filed if at all within 14 days) operates as an automatic stay of the suspension. It means that Brady, if a petition for rehearing is filed, would have his suspension held in abeyance until, at the earliest, the Second Circuit decides not to conduct a rehearing and, at the latest, until the rehearing is resolved with another ruling against Brady and the NFLPA.
If the petition for rehearing is granted, a source with knowledge of the Second Circuit procedures tells PFT that it’s quite possible (if not likely) that Brady will be able to play the entire 2016 season, regardless of the outcome.
Second, the issues in this appeal extend far beyond Brady. This is a question of the power that Commissioner Roger Goodell has when it comes to player discipline. The more power he has, the more it will take at the bargaining table to obtain third-party arbitration in matters involving the Personal Conduct Policy and conduct detrimental to the interests of the league, the two remaining areas in which Goodell serves as judge, jury, and executioner. The less power he has, the less it will take to get the league to surrender the Commissioner’s current power as part of the next CBA.
Third, it simply makes sense to push the case farther. So far, four judges have considered it. Two decided that Brady should win, and two decided that the NFL should win. The situation cries out for a tiebreaker. The only way for that to happen is for Brady and the NFLPA to seek a rehearing before the full Second Circuit.
Fourth, Patriots fans are still up in arms because the team didn’t fight as hard as it did against the punishment imposed by the league. Brady would be wise not to risk drawing their ire by not doing everything in his power to push back against an outcome that the Chief Judge of the U.S. Court of Appeals for the Second Circuit has declared to be unfair.