Typically with Second Circuit cases, the panel will meet and take a preliminary vote immediately following the oral argument. Thus, the judges know now—and knew within a day or two after hearing the arguments—how they are going to rule. Depending on how the vote turns out, the senior-most judge in the majority (Katzmann, if he is in the majority) assigns the opinion to himself or to one of his panel colleagues. If the decision is not unanimous, a concurring or dissenting judge will announce that he is writing separately. At that point, the opinion author will work with his clerks—in many cases, the clerks will write the first draft—to prepare the draft opinion and circulate it to the other panel members for comment. If one of the judges intends to concur or dissent, that concurring or dissenting opinion will be circulated to the rest of the panel after the majority opinion is circulated. If at least two judges sign on to the majority opinion, it will be published. As to timing with what Katzmann referred to as an “expeditious” court, I expect a decision by the end of April.
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Finally, it’s important to note that the standard of review here is De Novo (latin term for “starting at the beginning”😉. Thus, the judges can basically ignore Judge Berman’s interpretation of the facts—as it seemed they did in the hearing—and draw their own conclusions. This was the case with Judge Chin's comment that “the evidence of ball tampering is compelling,” a statement diametrically opposed to Berman’s view of the case.
What will happen?
I predict—with the usual disclaimer about not reading too much into the hearing—that there will be a 2-1 decision in favor of the NFL. Judge Katzmann showed some skepticism with the NFL’s argument, so I will put him on the Brady side of the ledger. However, Judges Parker and Chin seemed squarely on the NFL’s side.
With this decision, the Court could directly reinstate the suspension or remand (send back) to Berman with specific instructions. Brady would retain appeal rights, however, to (1) petition for a rehearing in front of the same panel of judges and then to the entire group of Second circuit judges, and (2) a potential appeal to the U.S. Supreme Court. In all cases, Brady would request a stay of his suspension while on appeal. Thus, this long-running series could continue for many more months or even years.
Beyond the appeals, there is a question of whether the NFL would demand Brady’s suspension. The league’s primary legal strategy has been to protect CBA precedent and prevent players and lawyers running to court after adverse discipline from Goodell. When I asked someone very senior in the league about whether Brady’s suspension would necessarily be enforced, he said “I assume so, but I am not certain.”
If the NFL is in the position of having litigated back their CBA power and precedent, my sense is they would be open to compromise with Brady. It has even been suggested in recent reports that a compromise could include an overall revision of the disciplinary system with Goodell ceding his appeal power. As to that, good luck; I just don’t see Goodell and the NFL giving that up without extracting a major pound of flesh. But, of course, we are getting ahead of ourselves. Let’s first see how this chapter, NFL v. Brady, appellate division, will end.
