What's Next For DeflateGate?
BOSTON (CBS) -- The DeflateGate saga hit New York again on Thursday, with a trio of second court judges hearing the NFL's appeal over Judge Richard Berman's decision to dismiss Tom Brady's four-game suspension.
The three judges hit both sides with a number of tough questions -- from PSI in footballs to Brady's cell phone -- which surprised many, who thought the basis of the hearing would focus on Berman's decision. Sports Attorney Daniel Wallach was at Thursday's appeal, and while the judges' line of questioning may make things look bad for Brady's side, he told 98.5 The Sports Hub's Zolak & Bertrand that may not be the case when they release their decision.
"This is an instance where an appellate court acted like a trial court," said Wallach. "They could just be remarking candidly and it will have no legal import of significance. The decision could very well look differently than the oral argument.
"There were enough positives for Brady yesterday -- it wasn't all downhill," he noted. "But you remember what you heard last, and the weight of the questioning tilted heavily against Brady and the NFLPA's position. But that might be because [Brady's attorney Jeffrey] Kessler was up second rather than first, so you kind of forget the tough time the judges gave [NFL attorney Paul] Clement."
So when can we expect a decision from Judge Robert Katzmann, Judge Denny Chin and Judge Barrington Parker Jr.?
"Unlike TV shows, there is no resolution at the end of an hour. Given the complexities of the issues at play, we're looking at a 3-5 month process of authoring and writing the decision," explained Wallach. "The judges are aware for the start of the 2016 NFL season, and Chief Judge Robert Katzman, at the conclusion of the hearing, made sure the parties understood the courts are all about expedition. I take that to mean we'll see a decision by the start of training camp."
And most importantly, what is next for both sides when that decision is released?
"At the extreme absolute level, it will either be an affirmance of Judge Berman's decision, meaning Brady wins outright, or it could be a reversal. But if it's a reversal there are several scenarios that could be set up. It could be reversed and then remanded back to Judge Berman for further proceedings, maybe even to tackle the unaddressed issues of arbitrator bias," said Wallach. "No matter which way the court rules, the certain next step will be a petition to re-hear en banc by the losing party; that is a mechanism available in the federal appeals court to ask the full court, all of the active judges on the court -- 10 or more --to re-hear the case.
"That is a long shot, because the second circuit historically, as all federal circuit courts, has a small percentage of re-hearing petitions -- less than two percent. But I think because of the high-profile nature of this case and the issues that are framed for all arbitration -- issues of collective bargaining, notice, fundamental fairness -- I think this case has all the boxes checked for a re-hearing en banc."
Yep, more court could be in the game plan, with this case potentially playing a major role in future arbitration hearings.
"It's not just about the weight of the football, it's about the broader issue of what kind of discretion federal judges have hearing arbitration rewards."
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