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Tom Brady continues ‘Deflategate’ suspension appeal

New England Patriots quarterback Tom Brady warms up

New England Patriots quarterback Tom Brady warms up before an NFL football game against the New York Giants at MetLife Stadium on Sunday, Nov. 15, 2015. Credit: Kathleen Malone-Van Dyke

The Tom Brady Deflategate saga continued Monday, with the Patriots quarterback asking a federal appeals court to have his case reheard in hopes of having his four-game suspension lifted.

More than a year after commissioner Roger Goodell suspended Brady for his role in using purposely deflated footballs in the AFC Championship Game in January 2015, Brady’s attorney filed a petition Monday to have the case presented before the the entire Second Circuit Court of Appeals. A three-member appeals panel last month ruled 2-1 that the discipline could stand after Brady was successful last September in his initial appeal of the suspension.

Olson was hired last month by the NFL Players Association to represent Brady. Olson said on ABC’s Good Morning America that Goodell incorrectly ruled that Brady should be suspended and “completely ignored the schedule of penalties for equipment-related violations.” Olson said “the facts here are so drastic, and so apparent, that the court should rehear it.”

According to the petition, a copy of which was obtained by Newsday: “This case arises from an arbitration ruling by NFL commissioner Roger Goodell that defies the rule of law. After orchestrating a multi-million dollar investigation into purported football deflation during the 2015 AFC Championship Game, Goodell imposed a severe and unprecedented punishment . . . When Brady exercised his right under the collective bargaining agreement to appeal the punishment to an arbitrator, Goodell appointed himself as the arbitrator and ‘affirmed’ the punishment he had just imposed. Goodell’s self-affirming ‘appeal’ ruling must be reversed.”

The petition also suggested that the “majority’s decision (of the Second Circuit Appeals Court) cripples the ability of employees to challenge discipline . . . The panel decision stands in stark contrast with fundamental rules of labor law and undermines the rights of union members and employers alike.”

It is uncertain whether Brady’s request for an “en banc” hearing, in which a full panel of judges hears the case, will be taken up by the appeals court. Such cases rarely are heard, making it possible that the case ultimately will be sent to the U.S. Supreme Court.

The continuing appeals process cause a lengthy delay for a final decision and could run into the start of the regular season. The Patriots’ opener is Sept. 11 at Arizona.

“The petition really broadens the urgency of review to an issue going beyond just player-owner legal relations,” Florida-based sports law attorney Daniel Wallach said. “It frames the issue more broadly as impacting the disciplinary regimes affecting all unionized labor, and that’s the way that Brady could seal the deal on rehearing. It can’t be about deflated footballs. It has to have a broader context as potentially undermining the rights of unions everywhere.”

If the Second Circuit Appeals Court decides to “stay” the suspension until a decision is made whether to hear the case, Brady will be eligible to play. If the Appeals Court decides not to hear the case, the suspension would be upheld, although Brady could ask the court to stay the suspension until the case could be appealed to the U.S. Supreme Court. It is uncertain whether the Supreme Court would hear the case if the appeals court declines to approve a rehearing.

Goodell said last month he had no plans to negotiate a deal in which Brady would receive a lesser penalty.

“We think that the decision was the right decision,” Goodell said of the announcement by the Second Circuit Court of Appeals that struck down Brady’s victory at the district court level in September. “It should have been the decision last year from the district court, and that’s what the appellate court said. They reaffirmed our authority and the underlying factors of the case. We think it came out in the right place. We’re not planning any more steps. We’d obviously like to put the matter behind us and move forward.”

Brady was suspended May 11, 2015, by Goodell, who relied on a month-long investigation by attorney Ted Wells that concluded Brady was “generally aware” of two Patriots equipment staff members deflating the footballs below the allowable minimum of 12.5 pounds per square inch (PSI). In addition to Brady’s penalty, the team was fined $1 million and ordered to forfeit a first-round pick in 2016 and a fourth-rounder in 2017. Patriots owner Robert Kraft announced last May that he would not challenge Goodell’s ruling on the team sanctions.

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