Tom Brady Officially Files Request For En Banc Rehearing With Second Circuit
BOSTON (CBS) -- As expected, Tom Brady and his lawyers will filed a request Monday afternoon for the U.S. Court of Appeals for the Second Circuit to rehear his case en banc.
The request calls for all 13 of the active judges on the Second Circuit to rehear the case and decide on it.
"This case arises from an arbitration ruling by NFL Commissioner Roger Goodell that undermines the rights and expectations of parties to collective bargaining agreements, and runs roughshod over the rule of law," the request, written by attorney Ted Olson, began. "Goodell's biased, agenda-driven, and self-approving 'appeal' ruling must be vacated."
READ: The Full Request For Rehearing
"This Union has always stood for protecting the rights of our members," NFLPA executive director DeMaurice Smith said. "Our filing of this appeal today on behalf of Tom Brady and all NFL players is no different. He was not afforded fundamental fairness and due process as guaranteed by the collective bargaining agreement and case law. We also know that the NFL propped up a now completely debunked 'independent' report with a made-up standard as the basis for his suspension. For sixty years we have affirmed the right to seek redress for our members and we will always hold the NFL accountable."
Brady's four-game suspension from the NFL was originally overturned in U.S. District Court in New York by Judge Richard Berman, but the NFL appealed the decision to the Second Circuit. There, a three-judge panel ruled 2-to-1 in favor of the NFL and ordered that the suspension be reinstated.
The dissent in that ruling came from Robert Katzmann, the chief judge of the Second Circuit. Judges Barrington Parker and Denny Chin ruled in favor of the NFL.
Brady hired Ted Olson, a highly respected lawyer with extensive experience arguing before the Supreme Court, in late April, and Olson wrote the request for an extension of the window to appeal from two weeks to four weeks on April 29. The NFL filed a motion to deny that request, but the Second Circuit did grant it, thereby moving the deadline for appeal to May 23.
"The divided panel of the Second Circuit reached erroneous legal conclusions under an unfair and unjust standard," Olson said. "The decision and the standards it imposes are damaging and unfair - not only to Tom Brady - but to all parties to collective bargaining agreements everywhere. Commissioner Goodell cannot sit as an appellate arbitrator and then affirm the league's initial disciplinary decision based upon a new theory and imagined evidence and pretend to be an unbiased decision-maker."
The Brady team now waits for a decision from the Second Circuit on whether or not it will hear the case en banc. That will depend on the decisions of the 13 active judges. Though en banc rehearings are granted at a remarkably low rate (data suggests that three one-hundredths of 1 percent of cases get reheard en banc), this case has always managed to be the exception in numerous ways, so there remains hope for Brady.
If the Second Circuit judges decide to not hear the case en banc, then Brady's camp can still request a stay of the suspension to the Second Circuit while preparing and petitioning the Supreme Court. At least in theory, the process could be prolonged for enough time for Brady to play the entire 2016 season without serving the suspension.
