As I said before Judge Berman ruled on Tom Brady’s suspension, anyone who tells you that they know what will happen in a court of law is lying or uninformed. Moving forward, I’ll say the same thing as it relates to the appeal of Judge Berman’s ruling.
No one knows what will happen, and anyone who claims that they know is lying or uninformed.
From a procedural standpoint, here’s what will happen, eventually. Of the 22 judges assigned to the U.S. Court of Appeals for the Second Circuit (located in New York), three will be randomly assigned to preside over the case. If only two of them agree with the NFL and disagree with Judge Berman, the NFL will win.
It’s that simple. Before the district court, it was an all-or-nothing argument to one judge and one judge only. On appeal, it’s a matter of persuading two of three judges.
The political backgrounds of those judges will be critical to the final ruling. If two of them were appointed by Republican presidents, chances are that they will be more inclined to agree with management. If, like Judge Berman, two of the judges were appointed by Democratic presidents, they could be inclined to agree with labor.
Indeed, there’s a good chance that one or more of the judges will have been involved with similar cases in the past, with their positions regarding the enforcement of arbitration agreements already firmly established, one way or the other.
In the U.S. Court of Appeals for the Fourth Circuit in Richmond, where I handled multiple cases while practicing law, the parties don’t even know who the judges are until the morning of the oral arguments. Ultimately, the outcome could hinge on which three judges are assigned to the case. Or, more accurately, which two judges get the assignment.
So the NFL could indeed win, although that victory may not come for a while. After that, the losing party would have to consider whether to file a petition for a rehearing before the entire Circuit. Eventually, the losing party will have to decide whether to attempt to persuade the U.S. Supreme Court to take up the case.
If the Supreme Court decides to make this case one of the very few it agrees to hear, it could be that the final answer comes multiple years from now, with the NFL possibly securing a victory after Tom Brady already has retired.