Let’s press pause on the talk regarding Peyton Manning’s retirement for some consideration of the case involving his nemesis, on which the play button was pressed again this past week.
Whatever words are used (and plenty have been) to describe it, a consensus has emerged that the hearing before the U.S. Court of Appeals for the Second Circuit didn’t go as well for Patriots quarterback Tom Brady as it could have. Still, anyone who claims to know with certainty what will happen in any legal proceeding is either stupid or lying.
It makes much more sense to try to outline the various possible outcomes, especially in a case where it’s not nearly as simple as one side wins and one side loses.
First, if the Second Circuit upholds Judge Berman’s ruling on whether notice of the punishment imposed on Brady was required, it would represent a complete victory for Brady, subject to the NFL exercising further appeal rights. Those rights would consist of a petition for rehearing before the full Second Circuit and, after that process ends, a petition for the acceptance of the case by the U.S. Supreme Court. If the NFL elects to continue to push the issue, it could remain unresolved for months — but Brady would continue to play while it does.
Second, if the Second Circuit reverses Judge Berman’s ruling on the issue of notice but affirms it regarding the lack of fundamental fairness, the case would go back to Judge Berman for a new hearing. Before conducting a new hearing, Judge Berman presumably would resolve issues that he left open, including whether Commissioner Goodell showed “evident partiality” during the first hearing and whether he improperly delegated the original suspension decision to Troy Vincent. Brady’s camp most likely would push to have all remaining legal issues decided before a new hearing is convened.
Third, if the Second Circuit reverses Judge Berman’s ruling on both notice and fundamental fairness, Brady would have to decide whether to exhaust his appeal rights, first by seeking a rehearing before the full Second Circuit and then by trying to persuade the Supreme Court to resolve the case. If that’s the approach taken, Brady would request a stay of the suspension until the appeal is fully resolved. If Brady doesn’t pursue his appeal rights, the case would go back to Judge Berman for consideration of the legal issues that weren’t addressed earlier. A ruling on those issues could spark further appeals.
Fourth, if the Second Circuit reverses Judge Berman’s ruling on both notice and fundamental fairness and the Second Circuit affirmatively resolves the remaining issues pending before Judge Berman (the NFL has asked that the Second Circuit do just that), Brady’s only option would be to pursue appeal rights or drop it and take the suspension. If he decides to appeal, Brady would need to seek a stay of the suspension.
Fifth, it’s possible that the Second Circuit will decide that clarification is needed from Goodell regarding whether and to what extent the four-game suspension applies to the issue of obstruction of the investigation. It’s possible this would result in a new hearing before Goodell, which then would be likely appealed by Brady into the court system, if another suspension is imposed. It’s also possible that Goodell would decide at the second hearing not to suspend Brady at all.
There are surely other potential permutations (including a possible settlement), and there’s a good chance that by attempting to identify all possibilities I’ve missed the one that actually will occur. The broader point is that plenty of things can still happen with this case, and that there’s a very good chance it will continue to linger much longer than it already has.