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Hurley: How Tom Brady Can Appeal To Second Circuit For Rehearing En Banc

By Michael Hurley, CBS Boston

BOSTON (CBS) -- It's funny, really, how Tom Brady's completely minor "victory" in court this week drew such attention and generated such strong reaction, considering all it did was give his new high-powered attorney a couple of more weeks to devise a strategy and put it into writing.

Yet, the fact that it became A1 news in New England is not particularly surprising, given how much attention has been paid to this strange, strange case known as "DeflateGate" for well over a year now.

And so, with the request for an extension being granted by the Second Circuit, the next step is to ponder just how attorney Ted Olson just might go about piquing the judges' interests in order to be granted an en banc rehearing.

For Brady and the NFLPA to succeed in that endeavor, they will need to convince seven of the 13 judges of the Second Circuit that an en banc rehearing should take place. As has been well-documented, en banc rehearings are almost never granted. From 2000-10, just three one-hundredths of 1 percent of cases heard were granted en banc rehearings by the Second Circuit (that's according to Page 4 of a Federal Bar document, which you can read here). In that 11-year period, the Second Circuit heard an average of 0.7 cases per year en banc.

Clearly, the odds are low.

Yet there is reason to believe this fascinating, unique case could end up being the exception, and one major reason is the mere presence of Chief Judge Robert Katzmann.

It was Katzmann, of course, who dissented with Judges Barrington Parker and Denny Chin in the ruling last month. And it was Katzmann who explained in the aforementioned Federal Bar document what it would take for the Second Circuit to grant an en banc rehearing.

"Throughout our history," Katzmann explained, "we have proceeded to a full hearing en banc only in rare and exceptional circumstances."

Sports attorney Daniel Wallach shared a description of what qualifies as "exceptional importance," and it's the final qualifier that would seemingly apply to the NFL v NFLPA case:

"A case is likely to be of exceptional importance to the parties when, although the issues raised are not particularly significant to the public generally or to the court, the 'cases involve large amounts of money or have extraordinary impact upon the individuals involved, regardless of the likely importance of the case as a precedent.'"

Large amounts of money? At roughly $20 million combined (and counting), that's a check. Extraordinary impact upon the individuals involved? Considering NFL careers are finite, and considering "legacy" matters from a historical perspective, that would be another check.

If ever there was an example of a rare and exceptional circumstance, it would be this one.

Perhaps no arbitration dispute in American history has ever garnered as much attention as this one. Though it began as an accusation about air pressure in footballs, it has since come down to a high-stakes game of chicken between the most powerful sports league in the world and its little-brother union of employees. The NFL, led by Roger Goodell, has fronted a war that never needed to be fought, and it's now escalated to the point where Brady's attorney is invoking the rights that are now threatened not just to football players but to all unionized employees.

"The Court's decision raises significant labor law issues that could have far-reaching consequences for all employees subject to collective bargaining  agreements," Olson wrote to the court in the request for an extension of the appeal window. "In particular, the opinion addresses the contours of an arbitrator's duty to consider and address probative terms under a collective bargaining agreement, and to consider and address the arguments raised by an employee subject to discipline under that agreement. These aspects of the Court's opinion are of great importance not only to NFL players, but to all unionized employees."

That's where this case is at: A spat over footballs which were potentially underinflated in a game decided by 38 points has now put the rights of all unionized employees subject to CBAs at risk of losing significant rights.

And, each time a minor, relatively meaningless development takes place in this case, the entire country reacts.

From that standpoint alone, it's fair to say this case is rare and exceptional. It just may fit the impossibly precise criteria.

But that alone can't convince the judges to hear the case en banc. It will require a very persuasive argument from Olson.

Not that the attorney who costs $1,800 per hour would need advice from a lowly sports writer, but considering this case has taken on the feel of a never-ending sports match, where predictions fly around haphazardly, here's an amateur forecast of where he can go when appealing to the judges.

First, and quite obviously, it would make sense to highlight each point raised by Katzmann in the chief judge's dissenting opinion. For one, the chief judge of the court has already given validity to the points, so reinforcing them makes sense. Beyond that, one never knows the political climate within the Second Circuit itself; surely, some judges may be more open to an en banc rehearing if it's something the chief judge is a proponent of holding.

Briefly, the points raised by Katzmann were:

1. The arbitrator (Goodell) changed the factual basis for the initial punishment. In doing so, Goodell breached his limitations as arbitrator, as determined by the CBA. Essentially, upping the charges from being "generally aware" to being deeply involved in a grand scheme to deflate footballs is something the arbitrator could not do, in Katzmann's opinion. To that point, the NFL asked no questions about the gifts or inducements from Brady to Jim McNally or John Jastremski during the appeal hearing, yet those "gifts" played a significant factor in Goodell (as arbitrator) ruling for Brady's guilt, despite it not ever really being on the table in either side's case. So, in Katzmann's opinion, the arbitrator ascribed guilt to Brady based on something which Brady was never given the opportunity to dispute, and it should not have factored into the arbitration decision by Goodell.

2. Goodell issued an unprecedented level of punishment and "ignored ... entirely" an actual comparative punishment -- an $8,268 fine for the use of stickum. Even a second stickum violation only results in a $16,537 fine, so "where aggravating circumstances exist" for a similar violation to deflating footballs, Goodell still overstepped his disciplinary authority and failed to explain his reasoning. On this point, Katzmann wrote that he was "troubled" by Goodell's unwillingness to consider an alternative penalty, so it clearly stuck out in a big way to him.

3. The CBA is meant to provide protections for players, not provide unlimited power to a commissioner who seeks it.

For as much as the world has dissected points one and two, it's probably in point No. 3 where Olson has the most room to work with if he wants to convince the judges to hear the case. Realistically, it stands to reason that the high-ranking judges would prefer to not get bogged down by the minutiae of a football league. In fact, getting tangled in the fine print of the player conduct rules and the issue of exact notice was Jeffrey Kessler's biggest failing in front of the three-judge panel in March. So reopening too many of those minor details may prove off-putting to a panel of 13 judges that likely won't be inclined to hear the case in the first place.

Instead, Olson can tie in Katzmann's specific complaints to a larger issue at hand: fundamental fairness. All of the inconsistencies and inequities of the process came back to that issue of actual bias affecting the arbitrator.

The arbitrator in this case (Goodell) was the same person who commissioned the Paul, Weiss firm to lead the investigation (along with NFL executive VP and general counsel Jeff Pash). That's the same investigation upon which the decision to issue the four-game suspension was based. And the arbitrator is the same person who used the Paul, Weiss firm as counsel for the arbitration hearing -- Lorin Reisner (who participated in the investigation) was the person called upon to question Tom Brady under oath.

What took place -- from Goodell using executive VP of football operations Troy Vincent to issue the punishment (even though that's not allowed by the CBA) to distance himself from the ruling, to Goodell ignoring the NFLPA's request for a neutral arbitrator, to Goodell multiple times acting in ways that could objectively be characterized as unfair throughout the process -- could easily be painted as a case of a commissioner manipulating a system to bolster his own power, when in fact that system should be set to ensure at the very least a fair and process for the employee. At the very least, having an arbitrator who was not so deeply involved in the issuance of the punishment in the first place is a right which stands to be threatened for unionized employees who have CBAs containing somewhat vague language.

If Olson is to convince the judges to interpret this case on a level much higher than air pressure in footballs and competitive integrity policies, that's where he must do it. Because, as previously stated, no arbitration dispute has ever had so many spotlights shone down upon it, and whatever ruling the Second Circuit decides to establish as precedent is certain to be used for many years to come.

Simply, whatever their leanings may be, the judges should want to get this right. They have to get it right. If enough of them feel responsible to not set a precedent that could at least theoretically threaten the rights of all unionized employees, then Brady should be able to get his rehearing.

What's been clear throughout the process -- both in Judge Richard Berman's courtroom as well as in the Second Circuit courtroom -- is that the language of Article 46 can be interpreted in vastly different ways. Judges Parker and Chin found it suitable enough for the courts to stay out of an arbitration dispute, while both Judge Berman and Judge Katzmann found the language to be intended to protect the players. The fact that a tremendous gulf exists between the two interpretations is also likely reason enough to allow more well-respected and high-ranking judges to apply their own level of consideration to the case.

Obviously, with a fraction of 1 percent of all Second Circuit cases being granted en banc rehearings, the odds remain slim for Brady, the NFLPA and Olson to succeed at this level. Yet, while it remains a long shot, the argument undeniably exists that this case is one of exceptional significance and importance, and thus the Second Circuit should feel pressure to take steps to ensure that the right decision -- whatever it may be -- is ultimately made.

You can email Michael Hurley or find him on Twitter @michaelFhurley.

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