NFL could win Brady appeal


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.

113 responses to “NFL could win Brady appeal

  1. I’m hearing Berman wrote a bullet proof
    Decision? Berman had plentyof time to write
    A good summation so it doesn’t get over-turned.
    3 Atty’s on Twitter.

  2. So you’re saying, TB’s real fate hinges upon political bias?

    It’s ironic, that TB, is most surely a Republican. And it was a pro labor judge who freed Brady from having to serve a suspension.

    Most of Boston has Republican leanings. It’s ironic they received a decision they wanted from a Democratic leaning judge.

  3. They COULD, but it’s extremely unlikely. The decision is well-reasoned and consistent with pretty much all precedent out there, including Garvey. Goodell has to act within the bounds of the CBA, even if he’s given the power to act as arbitrator, and it’s pretty clear he failed to do that.

    Incidentally, if the NFL wins, I actually think there’s a decent chance the Supreme Court takes it. That would be something. Punishment stayed until 2022…

  4. Well said, Mike.

    Now can we just enjoy the season and consider this matter regarding fiddling Uncle Roger closed until an appeal verdict is rendered?

    Pretty please?

  5. Yes, let it drag on through the headlines for years because Goodell’s bosses all believe that’s in the best interest of the NFL and their $44 million a year Emperor – you know, the one who no longer has any clothes.

  6. Just drop it Roger. You lost in COURT, not the fake judical system who oppose on anyone the media smites.

  7. If anyone honestly believes that the league lawyers will be able to come up with the arguments and case law needed to overturn this after watching them botch the investigation, appeal hearing, and lawsuit, I don’t know what to tell you…

  8. The NFL has angered so many of us, alienated us to the point of wishing a modern AFL would start up, that they could win 9 – 0 in the Supreme Court and never make up for the good will they have so glibly, so insultingly tossed aside.

  9. Because all judicial decisions are based on political bias and not the merits of the case?

    The Judge ruled this way not because of who appointed him or what he thinks of management, its because thats what the merits of the case were.

    If the NFL had allowed Brady to cross examine Pash and had they turned over the interview notes from their “independent investigation” (which BTW, the failure to do so was the proof that in fact the investigation was not independent) the NFL would have prevailed in the case.

    If the NFL followed the most basic standards of fairness they would have won.

    They didnt, they lost

  10. Appellate courts are not just a roll of the dice. Although a higher court judge might disagree with the lower court judge’s findings, the appellate judge will not overturn the original judge’s decision unless he abused his discretion, such as applying the incorrect legal standard or some other error of law. It doesn’t appear that Judge Berman misapplied any law, so it is highly likely that his decision will be upheld.

  11. While technically true the chances of any appeal being successful is always fairly slim. And only someone who had not heard berman’s reaction to the nfl’s case through the entire process would have been shocked if he had made any other decision. Winning an appeal in this case is a very slim hope for the nfl and trolls

  12. skawh says:

    Most of Boston has Republican leanings.

    Of all the preposterous things I have seen haters post, this takes the cake. You would be hard pressed to find a more liberal city. The home of the Kennedys, Kerry, Warren, Bulger, Menino, Curley, et al has Republican leanings??? The city that hasn’t had a Republican mayor since the 1920’s???

  13. While I agree that no one knows with certainty the NFL won’t prevail, it looks highly unlikely. Judge Berman’s opinion relied heavily on precedent and federal law regarding arbitration. There are so many clear violations of federal law in the NFL’s process in this case that I would be shocked if two judges voted to reverse the decision.

    As a side note, while I have read the entire ruling, it appears that many “legal analysts” on various networks have not. Some of the explanations I hear from these so-called “experts” seem to have little or no basis in what the ruling actually says. But hey, it gets ratings I guess.

  14. The judge ripped the NFL’s entire process as biased and rigged. What exactly is the counter argument to that?

  15. Roger Goodell must be a masochist …he loved losing in court…maybe it helps deflect attention to all negative press he gets concerning domestic abuse etc…

    Judge Berman’s ruling will stand. The NFL cannot arbitrarily enforce rules, and cannot change the penalty for ball tampering from a fine to a suspension, this violates the labor rules of the United States. Goodell has been found guilty of violating labor rules many times in just a few years. He needs to resign.

    This was a good day for the players and their union. Goodell needs to be stopped from abuse of power.

  16. .
    My understanding is that to be victorious on appeal, the NFL must prove that Berman was wrong on the law. The main document in question will be the 40 page decision issued by Berman today.

    Also, only my understanding is that judges are not always anxious to overturn a fellow judges ruling unless a mistake is blatant.

  17. Unless the judge interviewed the equipment guys under oath, then this whole thing was nothing but a joke.

  18. The NFL has lost all control. It can no longer even enforce punishment for those to have reasonably been found to have cheated and then obstructed an investigation. Brady has escaped on a technicality. And that is the real truth.

  19. I bet Irsay gave Goodell a nice “Brady Suspension Finalist 2015” banner to hang in his office.


  20. Isn’t it great when the political leanings of a judge determine the legal outcome of an issue? Why even have judges, use politically elected referees if the law doesn’t matter.

  21. If there’s smoke there’s fire and Tom Shady is as guilty as it gets despite what any judge has to say. The kids in New England must be really proud of you Hall of Shamer.

  22. Actually Berman may have exceeded his authority by using his own interpretation of the CBA in regards to the wording of “detrimental to the league” and Goodells CBA agreed authority to impose punishment.

    The technicality he cited for letting Brady walk won’t hold up on appeal if they get 2 judges that believe in common sense.

    I hope everyone teaches their children that if they see something wrong, or do something wrong they should report it. Apparently Brady’s parents failed to share that with him.

  23. Berman is a well regarded judge, and his painstaking ruling takes all the NFL lies and pulls them apart like tissue paper. It is surgical. Speaking as someone who believed the Duke lacrosse players, the UVA fraternity, and of course Tom Brady despite all the people bellowing without evidence, I am telling you once again that the NFL is wrong and the courts will agree.

  24. Just the Tom Brady Bigots who will say over and over again that they still believe Tom Brady cheated because they hate Tom Brady. Remember Tom Brady Bigots are so called fake fans of NFL Football that hate any players who consistently beats their team as is the case with Tom Brady, who always beats their team.

    Having said that the rest of us should hold true in the opposite direction and that means, no matter what happens in court after this day, we will always know Tom Brady was found innocent by Judge Berman who I believe dotted all the I’s and crossed all the T’s he had to and it will always be in our minds and hearts that Tom is innocent and one of the great player of all time. Tom Brady Bigots you are no matter what all the typical bigots who try to tear down others for no good reason except you hate them. Long live the sterling reputation of the Great Tom Brady.

  25. Remember while you’re all so busy high-fiving that the judge never pronounced Brady innocent. He simply decried Goodell’s methods. There’s a difference.

    Yes, the NFL could win the next round (especially if they get the Deflator up on the stand under oath).

  26. “steelcurtainn says:
    Sep 3, 2015 5:42 PM

    If there’s smoke there’s fire and Tom Shady is as guilty as it gets despite what any judge has to say. The kids in New England must be really proud of you Hall of Shamer.”

    If Tom Brady should be suspended for anything, it’s repeatedly abusing Troy Polamalu in public.

  27. sasquatch500 says:
    Sep 3, 2015 5:38 PM
    Unless the judge interviewed the equipment guys under oath, then this whole thing was nothing but a joke.

    Goodell could have easily made the request to have them appear as his appeal and testify under oath.

    He chose not to do so. Now why do you suppose that is? 🙂

  28. It’s not about politics. That is way over simplifying the process. The court of appeals has to find that Berman’s ruling was legally not correct.

  29. Hopefully Goodell just puts him on the commissioners list until this is all resolved. See you in 2019 Tom.

  30. The NFL will ultimately win. There has to be some standard for punishment when a team or players break the rules. There is plenty of circumstantial evidence to pin Brady to the mat.

    This ruling was not based upon whether TB knew about this or had part in the act, merely the league basing the punishment on PED cases.
    The NFL played a bad card.

    Goodell should be terminated and not because of the punishment,which Brady deserves,but for wasting league resources on a case that was precedent setting and should easily have been won. Their lawyers dropped the ball.

    The NFL will establish a punishment guideline that must be agreed to by the NFLPA.

    Lastly, as a fan, I’d rather see Brady play against my team. Justice will be served on the field.

  31. oh, and a steelers fan of all people bitching about someone else’s qb lol, go worry about your rapist qb, your steroid abusing 70’s teams, or your coach who cheats because he tried to trip a player illegally in a live game on national tv for everyone to see lol.

  32. Now, would someone please tell us who leaked to Kravitz and Mortensen.

    Goodell should be asked that question every da until we know the culprits.

  33. I know in front of Berman the only issue was if the appeal process was done fairly and correctly. Now that the NFL has decided to appeal do they simply look at today’s decision, or can they take a step back and reexamine the merits of the original case? If so I’m all for it – perhaps now all sorts of folks from the league office will get to testify under oath. Just think of what Kensil, Pash and Gardi will say.

  34. flaccounibrow says:
    Sep 3, 2015 5:20 PM

    He’s a cheater, and he got away with it. Great lesson for the kids. Cheaters do win…all the time. I love how all of the anti Pats people “know” he cheated. The NFL spent 5-10 million and couldn’t come up with definitive proof that he cheated but you guys “know” he did. Is there a chance he did of course, I don’t believe he did but I wouldn’t swear on a stack of bibles that he didn’t but because I really don’t know and neither do any of you people know he did. The Wells report certainly didn’t prove he did as the NFL’s own lawyers admitted in the first hearing. Not to mention that fact even if he did he didn’t deserve a 4 game suspension. Judge Berman made the right ruling for a number of reasons. Maybe it will get overturned but I sure hope not and it shouldn’t if the 3 judges on the appeallate court have half a brain.

  35. steelcurtainn says:
    Sep 3, 2015 5:42 PM
    If there’s smoke there’s fire and Tom Shady is as guilty as it gets despite what any judge has to say. The kids in New England must be really proud of you Hall of Shamer.


    The hall of fame is full of Steelers hall of shame steroid abusers. Brady will be a breath of fresh air to that bunch of meat heads.

  36. It is random but there are a more Democrat appointees in the Circuit. The mostly likely is at least two Democrat appointees, but in order to overturn it Berman must have made an egregious error. His ruling is anchored in precedent.

  37. steelcurtainn,
    The kids in New England must be really proud of you Hall of Shamer.
    Yes, New England is very proud of our QB (aka GOAT).

    And if you took the time to read the Wells Report and all other related documents instead of just the headlines you would see how ridiculous this whole ordeal was from day one. See you next Thursday for the banner raising.

  38. Let it rest for now and get on with the season.

    When Brady retires and goes into the HOF (which he certainly will) equip his bust with a motion sensor that makes his nose grow…

    Justice is blind, but it comes in many forms.

  39. jeffrey kessler will go to bed tonight praying the nfl appeals — he’s winning unilaterally in court what he couldn’t negotiate for at the bargaining table

  40. Skawh, if you truly believe that Boston leans to the right, then you have absolutely no aptitude for politics.

    The last GOP presidential nominee to carry Boston’s precincts was…Calvin Coolidge (a former MA governor) in 1928.

    Good grief.

  41. The NFL is like Big Tobacco. They were once untouchable until they were”t.

    It is open season on Goodell, the billionaire boys club, and their lackey, ESPN.

  42. Amazing to me how many haters hate due process. They must believe injustice will never happen to them or their loved ones.

  43. Careful Florio…patriots fans scream and cry when they don’t get their way. They will dub you a hater on a witch hunt.

  44. Imagine the irony if after all of this, Brady goes out with a season ending injury during week 1 and then announces his retirement before the start of the 2016 season.

  45. To all the subliterate fools on this thread demanding that the appeals court depose the fired equipment workers: it cannot be done because they were never deposed by the league. These court proceedings are NOT an investigation into ‘deflate gate,’ they are a review of the league’s investigation and how it squares with NFL bylaws, the CBA, etc. Richard Berman and his colleagues do not have the authority to examine the so-called deflator because Roger Goodell and Mr. Pash, administrative geniuses, apparently thought doing so was a waste of time in the first place.

  46. Because the court seemed to decide the case on procedural grounds, it seems to me that the best the league could hope for, on appeal, is for them to send the case back for arbitration consistent with Berman’s findings.

  47. Big business took one on the nose today, and the proletariat (and how weird is it to think of a multimillionaire like Tom Brady as a member of the working class?–welcome to the twenty-first century) won. Unless you’re a CEO and have a vested interest in keeping your employees’ necks under the heel of your boot, you should be pleased with this development. The NFL thought it could act with impunity on matters of discipline and the US court system decided otherwise.

    Also: Taking a little air out of footballs is cheating only to the extent that making an illegal right on red is a crime. There was never any there there.

  48. The appeal is more than likely to simply be based on Judge Berman’s trial procedure, the odds of getting two judges so opposed on principle to not letting the NFL run roughshod over an arbitration are pretty slim. Not knowing the outcome is a lot different than being ignorant as to what the outcome will likely be. But thanks for the after-school lesson sports talk lawyer. Piece in be see!

  49. The political backgrounds of those judges will be critical to the final ruling
    This statement basically says that many judges lack integrity and the true ability to be impartial when ruling on matters before their courts. That in and of itself is a failure of justice and a damn shame.

  50. Goodell needs to let it go. Even if he can win the appeal he shouldn’t go for it. Just drop it and admit you were in the wrong. That would be the smart move.

  51. tigerlilac says:
    Sep 3, 2015 6:09 PM
    Amazing to me how many haters hate due process. They must believe injustice will never happen to them or their loved ones.

    They’d rather see the NFL be deliberately deceitful and break their own CBA rules so that a player they hate can get shafted rather than actually see justice get served.

    Its really quite sad.

    People who claim to care about the game should be happy today regardless of whether they like Brady and The Pats or not, because this ruling is going to help a lot more players and teams going forward get a fair hearing.

    Something they haven’t had up to now with Goodell in charge.

    Saints fans and players understand this fully and rejoice in todays decision.

  52. Judge Berman asked the NFL every point i brought up on why the NFL process was a sham

    1. I said where is the direct evidence that Brady ordered the balls to be lowered below the legal limit?

    Check. Judge Berman asked that

    2. Goodell was not impartial because he wasnt overturning his own punishment.

    Checm. Berman ripped the NFLs process

    3. Wells investigation was flawed and pre-determined and not independent.


  53. if the NFL wins, they will become just like the board members at Penn St when those dullards supported the debunked Freeh report. irrelevant, and disgraces in the end.
    There was no direct evidence even suggesting the balls were deflated, much less that it gave them an advantage (lol they scored more points in the 2nd half!). And the Wells report was the furthest thing from independent. Never mind the fact that info they used to prove his guilt was withheld from him! A basic, fundamental right of fairness. the NFL would be wise to just cut its losses, instead of continuing to try and justify that fraud they called the wells report.

  54. Brady holds a lot of cards.

    He could say “if I’m suspended then I retire from the NFL because Goodell. I’m 38 and my wife is wealthier than I am, I don’t need this.”

    I don’t think fan perception of Goodell or the league goes up if superstars just retire out of spite.

  55. Enough already. Just have the refs cheat them the way they been cheating the Raiders forever

  56. Take your punishment like a Man Goodell and the NGL.

    Isnt that what the mis-informed Brady haters said. O and that line about Brady not having the courage to take the NFL to court.

    Wow amazing the lack of intelligence in here.

  57. I’m not a lawyer, so I plead to other lawyers:

    The federal appeals court can rule in favor of the NFL or against or even order the case back to the district court for the retrial, is that correct?

    Also, where is it said that the court of appeals then goes before 22 judges? That is, if the NFL loses the appeal, wouldn’t the next step be the U.S. Supreme Court. What’s this business about appealing to 22 judges???

  58. Are you suggesting that court rulings have more to do with politics than justice? I’m disillusioned.

    Hey, now the NFL ball boys need to form a union and get the suspensions of two of their own overturned.

  59. I am glad the NFL is sticking to it’s guns and filed an appeal. The judge did not exhorate Brady. Only said he couldn’t be punished.

  60. If the NFL wins the appeal can the Patriots appeal the appeal? This is never going to end. I dislike the Patriots as much as anyone else but I wish today was the end of this whole charade.

  61. limakey says:
    Sep 3, 2015 7:37 PM
    I am glad the NFL is sticking to it’s guns and filed an appeal. The judge did not exhorate Brady. Only said he couldn’t be punished. ____________

    You must be one tired dude Limakey with your thousands of hater posts and nothing to show for it…

  62. Look at the bright side…
    This may be the final straw that causes Goodell to resign.
    Secondly, A Federal judge in New York just legalized cheating in the NFL.
    Anything goes from now on.
    Integrity means nothing.

  63. Wk1234, I am good. Brady was not and never will be exhorated. He will go down in the books as not only gaming the system but also the punishment as well. His name will never be cleared and will go down as a liar and a cheater. Trust me, I am good.

  64. 2nd circuit is over 60% democrat appointees. The odds are against the imbecile Goodell. And then there’s the republicans who care about fairness to consider.

    Roger has the same chance of getting this undone as a snowball has in hell.

  65. limakey says:
    Sep 3, 2015 8:52 PM
    Wk1234, I am good. Brady was not and never will be exhorated. He will go down in the books as not only gaming the system but also the punishment as well. His name will never be cleared and will go down as a liar and a cheater. Trust me, I am good.


    Good… we were all worried about you. Trust me.

  66. limakey says:
    Sep 3, 2015 7:37 PM
    I am glad the NFL is sticking to it’s guns and filed an appeal. The judge did not exhorate Brady. Only said he couldn’t be punished.


    I don’t think you get it… Patriots fans want him on the field playing and they didn’t want him to admit any fault. Both achieved.

    If he was fined it the first place this would be long over. They could have fined him 25k before the Super Bowl and put an end to this before they spent 3 million dollars on the investigation.

  67. Robert Kraft accepted the NFL’s punishments, not as an admission of guilt, but as a gesture to end this thing and take the league, and the reigning Super Bowl MVP, out of the persistent negative light in which they have been portrayed in the media these last nine months. The NFL, and it’s 32 owners, should follow Kraft’s lead and drop the appeal. And then, to show that they mean it, fire Roger Goodell.

  68. In non union jobs you are hired at will and your employer can fire you anytime they want. Most NFL players make a ton of money like their employers and each side has expensive attorneys. A whole other world. It is hard to feel bad for Tom Brady or Roger Goodell but I do wonder if “the deflator” will ever really go to espn.

  69. Not so fast. The American Enterprise Institute is a conservative think tank, yet they published a devastating rebuttal to the Wells report that exposed it for the shoddy excuse for an investigation that it is. So I’m not so sure that the opinions of the judges will necessarily fall along party lines.

  70. As a Patriots fan, I can understand why fans outside of NE are responding the way they are (except for those who hate the fact that the Patriots are the most successful franchise in the salary cap era).

    I know because that’s the way I felt when the New Orleans Saints were penalized. I didn’t read all of the documents thoroughly, only the headlines and the articles on NFL mouthpiece media outlets like ESPN. So, I grasp completely how real fans of the other 31 teams feel. I especially feel for those Saints fans because the drain on Patriots fans since winning the Super Bowl – which should have been a defining moment – has instead been a constant strain that has carried over until yesterday. That was the first day I could celebrate Malcolm Butler’s game-changing interception – as though it had been on freeze-frame until Thursday, October 3rd.
    So, if I were a fan of any of the other teams I would be saying to myself. First, Coach Peyton, then Tom Brady, WE COULD BE NEXT if this power-hungry egomaniac who is currently serving as commissioner decides to go after our team or one of its players!
    As Saints fans found out, the wear and tear of going through that experience can have a profound affect on the following season. Hopefully, Bill Bellicheck will find a way to prevent that from happening, as at least we still have our coach on the sidelines – not that they didn’t try to trump up charges against him before they settled on his quarterback.

  71. So glad the NFL is appealing. The NFL has everything to lose on appeal, and nothing to gain. Once heard by an appeals court this case becomes precedence for the 2nd Circuit, the circuit most likely to hear future NFL cases now since NFL HQ is in NYC. Also, the appeals court doesn’t need to show the same restraint Berman did in his ruling. They can ridicule and lambaste Goodell on all points to drive home what a ridiculous mess this is.

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