For weeks, I’ve been saying that the Tom Brady litigation will end in the near future only with a settlement. And even with Monday’s settlement conference resulting in yet another no-settlement declaration, a settlement remains possible until the moment Judge Richard M. Berman rules on the case.
If/when he rules, the losing party (or both parties, in a lose-lose outcome) will have the automatic right to appeal the decision to the U.S. Court of Appeals for the Second Circuit. Eventually, a three-judge panel assigned from 22 total judges on the circuit would hear the case and decide it. The losing party at that point could petition for a rehearing before the entire 22-judge Second Circuit. Eventually, the losing party could try to persuade the U.S. Supreme Court to take up the case.
But an appeal will happen only if the losing party chooses to prolong the case. Either side could, in theory, decide to accept Judge Berman’s ruling and move on.
Brady probably would be more inclined to do that, but only because the NFL presumably has no willingness to do anything other than push its position as aggressively as humanly possible. If the league loses before Judge Berman, it will shrug at the predictable findings of a judge the lawyers will privately (or publicly) deride as liberal and activist, and they’ll hope for a more conservative panel at the next level.
There’s also a chance that a settlement could be reached on appeal. But with little or no progress made toward a resolution despite the earnest efforts of Judge Berman, it’s unlikely that the two sides will ever find a middle ground on this one — even if Judge Berman crafts a final outcome that they both dislike, such as a second appeal hearing with former Commissioner Paul Tagliabue presiding and Jeff Pash, John Jastremski, and Jim McNally testifying.