Although Patriots quarterback Tom Brady and the NFL Players Association lost in the U.S. Court of Appeals for the Second Circuit, triggering the reinstatement of his suspension, one of the three judges randomly assigned to the case voted for Brady’s side. That judge, Robert A. Katzmann, is also the Chief Judge of the Second Circuit.
Appearing on Tuesday’s PFT Live on NBC Sports Radio, former U.S. Solicitor General and lead Brady appeal counsel Ted Olson explained that he is encouraged by the fact that Judge Katzmann saw fit to write an opinion that disagreed with the reasoning and result of his colleagues.
“The Chief Judge wrote a very convincing dissent,” Olson said. “He’s a highly respected individual. He’s been a member of that Court for many, many, many years. He very rarely dissents from an opinion by his colleagues. Over the years, just a few times out of thousands of cases in which he’s participated. So here’s an individual who is highly respected, who’s the Chief Judge of the court, who wrote a very cogent, persuasive, dissenting opinion pointing out important principles that he felt — and we feel — the majority got wrong. So we do think that that gives us an extra impetus in seeking rehearing.”
The real question is whether Judge Katzmann has the ability to persuade enough of his colleagues to see things his way and agree to a rehearing. He needs to sell his position to at least six of the other 12 active judges assigned to the Second Circuit.
Wisely, Olson and his colleagues tracked the arguments raised by Judge Katzmann in his dissenting opinion. First, that Commissioner Roger Goodell upheld the four-game suspension for reasons other than the reasons articulated by NFL executive V.P. of football operations Troy Vincent, who originally imposed the suspension. Second, that Goodell failed to even mention the Collective Bargaining Agreement provision regarding equipment violations, which calls for a fine of only $8,268 as the punishment for a first offense — and which expressly encompasses the use of Stickum, a compound that enhances the ability to grip a football.
We’ll find out soon enough whether those arguments will help Olson make Brady’s petition for rehearing, you guessed it, stick in the Second Circuit.