An image of the Second Circuit's denial of Tom Brady's petition is very brief but very to the point: pic.twitter.com/T29Y1O8LIp— Michael McCann (@McCannSportsLaw) July 13, 2016
The on-going saga that is the “DeflateGate” scandal for the NFL continues with another turn coming on Wednesday. The 2nd Circuit Court of Appeals has denied New England Patriots quarterback Tom Brady’s petition for a re-hearing or a hearing en banc, upholding the previous decision of a panel hearing to re-instate the NFL’s four game suspension of Brady.
Brady can appeal to the U.S. Supreme Court, but that move is not expected to be a fruitful one for Brady. Justice Ruth Bade Ginsberg, the Supreme Court Justice designated to handle appeals from the 2nd Circuit, could order a stay of the suspension until an appeal is head, but that would also mean the Supreme Court decided to hear the case.
As our friend Scott Salmon from over at Gang Green Nation, who, besides being their Managing Editor, is also a practicing attorney, explained in an excellent piece all about the way ahead for a Brady appeal, “Currently, they [the Supreme Court] only accept 1% of all [certiorari] petitions.” In other words, it is extremely unlikely the Supreme Court would even consider the case.
Salmon adds, “They don't care if you're famous, they care if there is a reason why their judicial opinion is actually needed. Often, this takes the form of a case of first impression (which means there is no commonly accepted legal determination on the subject), or where there is a split among the courts in how cases of that type are decided.”
After Salmon explains exactly why the Brady appeal does not meet either of those categories, he also points out that the Court would not be able to even hear the case before the start of the season - and Brady’s suspension:
“If Brady were to file his cert. petition today, the NFL would have thirty days to respond, and Brady would have an additional fourteen days to reply to their brief (although he can waive that fourteen-day period). The first conference that the Supreme Court will hold to determine if they would accept the case is on September 26, after three of the four suspension games will have been served. At the conference, Brady will need four votes just to take the case. If they were to do that, at the earliest, their first oral argument isn't scheduled until October 4, which is after the fourth game.”
(Read the whole “All But Over: A Legal Guide to the Rest of Deflategate” for more on why it is unlikely Brady will find relief from the Supreme Court.)
Obviously, the Brady suspension is important for all of the teams in the AFC East, who could take advantage of a stumble out the gate if backup quarterback Jimmy Garoppolo is unable to take charge of the offense. For Miami, it could have an even bigger impact, as Miami plays the Patriots in New England in Week 2, potentially stealing a win in New England early in the season.
DeflateGate may not officially be over, but it does seem like Brady is running out of ways to fight the NFL.