Wallach: We Should Learn Second Circuit's Leaning On Tom Brady Rehearing Within 30 Days
BOSTON (CBS) -- It's been going on since January 2015, and there remains no end in sight. So, when can we expect the next shoe to drop in "DeflateGate"?
Attorney Daniel Wallach joined Zolak & Bertrand on Tuesday and said we could get a very strong indicator of the Second Circuit's potential openness to a rehearing in the next 30 days. The Second Circuit will either deny Tom Brady's request for a rehearing, or it will order the NFL to respond to the motion for rehearing.
If it's the latter, it'll be an indication that the court is at least somewhat open to the idea of an en banc rehearing.
"If the court orders the NFL to respond, then that is a very strong indicator that at least four of the judges on the court are inclined to rule or inclined to entertain rehearing. That is a significant event. But most of the time, appellate courts will deny rehearing quickly," Wallach explained. "The sign of a court order directing the NFL to file a response would be a really positive development for Tom Brady."
Noting that last summer's process with Judge Richard Berman was expedited, Wallach stated that it's likely that the Second Circuit will handle this case in a similarly expeditious manner.
Wallach was asked about attorney Ted Olson's strategy of turning the case of deflated footballs into a grander labor law case.
"It's the only way to have approached it," Wallach said. "The Second Circuit is so selective. Over the course of a decade, it has reheard maybe 12 or so cases. It's highly selective. It's only going to choose those cases that could impact the greatest number of people, and quite frankly the problems associated with Tom Brady or several hundred players are not as interesting to the court as how it could impact the rights of all unionized labor across the United States.
"When you're appealing to a United States Supreme Court or asking the Second Circuit to basically choose your case as one out of a thousand, you have to shoot for a much broader level of appeal and not just simply focus on the rights of the individual involved. It has to be framed as impacting potentially tens of thousands of unionized employees. That's the only way it's going to cross the finish line. If it focuses only on Brady or a deflated football, it's got no shot."
Toward the end of the discussion, Zolak and Bertrand noted that even though the odds are against him, Tom Brady has pulled off some miraculous finishes in his career.
"So has Ted Olson, and it's Olson's abilities that matter more. Olson has a strong track record of success at the U.S. Supreme Court and at securing rehearings. He was successful in New Jersey at persuading the Third Circuit to rehear the sports betting case. So we can just harken back a couple of months ago. Olson pulled a miracle in another case. And I believe this case is fundamentally more important -- even though people joke that it's about a deflated football or just about Tom Brady. The impact of this case could reach many more cases in the future. This is precedent that could impact labor arbitration throughout the Second Circuit, whereas the New Jersey sports betting case really only impacted maybe the state entity and not all of the individuals within the state. So I believe on some levels, this case is even more important."
Listen to the full interview below:
