Tom Brady isn’t completely out of legal options to fight the four-game suspension that was re-instated Monday by a panel of judges in the U.S. Court of Appeals for the 2nd Circuit, but the New England Patriots quarterback’s odds of having his appeal heard again are slim, an appellate attorney told USA TODAY Sports.
“The takeaway is that Brady lost. Brady lost everything,” Rafi Melkonian, a partner at the Houston firm of Wright & Close said after reviewing the 2nd Circuit ruling.
Melkonian said Brady’s most likely recourse is to ask the court for a stay of the suspension while his legal team pursues an en banc session from the 2nd Circuit. This means Brady would request that 13 active judges in that circuit all review Monday’s ruling, which was issued by a three-judge panel.
“He would need to get a majority of those judges to agree they want to hear this case. That is incredibly rare in every circuit, especially in the 2nd circuit, which is notorious for not taking cases en banc,” Melkonian said. “That, I would say, has a less than 1% chance of it happening.”
If Brady does have a chance to have his case reviewed this way, Melkonian said, it is because Chief Judge Robert A. Katzmann issued a dissenting opinion as part of the three-judge panel that re-instated Brady’s suspension. In that dissent, Katzmann was critical of the way NFL Commissioner Roger Goodell asserted his authority.
“Commissioner (Goodell) exceeded that limited authority when he decided instead that Brady could be suspended for four games based on misconduct found for the first time in the Commissioner’s decision,” Katzmann wrote. “This breach of the limits on the Commissioner’s authority is exacerbated by the unprecedented and virtually unexplained nature of the penalty imposed.”
Asking for an en banc review would allow Brady to see if other judges might agree. Melkonian said Brady would likely have to file his request within the next two weeks, at which point the judges will either deny it or ask for a response, which could extend the timeline.
“He’s an incredibly highly respected appellate judge. He’s a very big deal, so if Judge Katzmann wrote a dissent the other judges will look at it. So you can’t say it’s a 0% chance.”
Brady’s other legal avenue would be to appeal the case to the U.S. Supreme Court, though the likelihood that the nation’s highest court would choose to hear it is extremely slim. The court typically hears only about 80 cases per year out of more than 7,000 petitions.
“While this case is very important to Tom Brady, and it’s very important to those of us who love the NFL, it’s not particularly important to the nation whether Tom Brady plays or not, or whether the CBA is interpreted this way or that way,” Melkonian said. “Usually, the Supreme Court only gets involved when there is a big disagreement between courts of appeals in various parts of the country, and there really is not in this case.”