Daniel Wallach@WALLACHLEGAL Breaking: NFL files its "Civil Appeal Pre-Argument Statement" with the Second Circuit, previewing its arguments on appeal
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Awesome @McCannSportsLaw find: Judge Berman reversed by Second Circuit only 13 times out of 138 appeals since 2006 (less than 10 percent)
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In court papers filed with the U.S. Court of Appeals for the Second Circuit, attorneys for the NFL outlined the league’s anticipated legal arguments for the appeal. Unlike the one-month hearing before Judge Berman, the appellate process in Brady v. NFL will take months, if not years, to play out and an ultimate decision is likely a long way off. Assuming the NFL and NFLPA continue the appellate process to its logical conclusion, the Second Circuit will probably not rule until next summer or fall and its ruling would be followed by another appellate stage. To be sure, the league appealing Brady v. NFL is the expected move and is consistent with statements made by NFL commissioner Roger Goodell. As explained below, however, the appeal imposes risk on the NFL and possibly other professional sports leagues.
Understanding the NFL’s filing on Thursday and its significance in the case
Thursday’s filing only serves as the NFL’s “pre-argument statement.” The pre-argument statement merely informs the Second Circuit of the types of arguments the league plans to raise on appeal.
According to the pre-argument statement, the NFL first intends to argue that Judge Berman relied on the wrong federal law in determining the relevant legal standards. The league insists that Judge Berman should have relied on a federal labor law — the Labor Management Relations Act — rather than the Federal Arbitration Act. In his opinion, recall how Judge Berman highlighted that an arbitration award (which in this case was Goodell upholding Brady’s suspension) must exhibit fairness and due process. Judge Berman also placed significance on the law of the shop, which required the NFL to provide advance notice of prohibited conduct and potential discipline. In an appeal, the NFL will insist that the Second Circuit should place far greater significance on federal court deference to arbitration awards as dictated by the Labor Management Relations Act.
Second, the NFL intends to argue that Judge Berman mistakenly disagreed with Goodell's interpretation of the CBA, Goodell’s findings of fact and Goodell’s utilization of past NFL arbitration awards. Judge Berman contended that Goodell, as the arbitrator, was “not free to merely dispense his own brand of industrial justice." Judge Berman’s message indicated that he regarded Goodell as acting well beyond the permissible scope of his powers. Recall how during the hearings, Judge Berman seemed particularly interested in the NFL’s findings of fact — especially as that fact-finding related to NFL allegations of a football deflation conspiracy and to whether the league sufficiently explained under which policy Brady had been punished.
Third, the NFL plans to assert that Judge Berman wrongly relied on his disagreement with Goodell’s rulings on two issues pertaining to evidence. In his opinion, Judge Berman chastised Goodell for several topics related to evidence, including Goodell denying Brady an opportunity to review notes of witness interviews conducted by Ted Wells. In an appeal, the NFL will maintain that Goodell had the discretionary authority under Article 46 Or as more than one legal scholar has noted, the NFL is basically regurgitating its original argument which boils down to "Article 46 says Goodell can do whatever the fuck he wants." of the collective bargaining agreement to make decisions about evidence and that Judge Berman mistakenly ruled otherwise.
Lastly, the league argues that in reviewing Judge Berman’s order, the Second Circuit should do “de novo.” If adopted by the Second Circuit, the de novo standard would require the appellate court to review Judge Berman’s decision without deference to Judge Berman. The Second Circuit would thus consider the issues raised by Goodell in upholding Brady’s appeal with a fresh set of eyes and wouldn’t rubberstamp Judge Berman’s conclusions. The de novo standard is generally considered the appropriate standard for questions of law, but as the NFLPA will insist, it is not appropriate for questions of fact and arguably some aspects of Judge Berman’s decision go to factual matters.
Brady will likely win the appeal
To win the appeal, the NFL must convince at least two judges on a three-judge Second Circuit panel(the panel has not yet been named) that Judge Berman misapplied or misinterpreted the law.
First, appeals usually fail.
Second, the Second Circuit has affirmed Judge Berman’s decisions at a high rate. According to data I found through Westlaw’s excellent judicial reversal report service, 138 of Judge Berman’s decisions were appealed between 2006–15 and 104 of them (75%) were affirmed. Only 13 of those appeals (9%) led to the Second Circuit reversing or vacatingJudge Berman’s decision, with even fewer appeals leading to remand (which means a new hearing) or partial affirmation.
Third, Judge Berman’s decision in Brady v. NFL lacked obvious gaps in reasoning that can be exploited in an appeal. This was not a head-scratching opinion that seems ripe for appellate reversal. The decision was instead straightforward and, to many, logical.
The NFL losing the appeal could carry serious consequences for the league and possibly also the NBA, MLB and NHL
The NFL’s loss in Brady v. NFL at the U.S. District Court in the Southern District of New York creates precedent that can be used against the NFL in future cases. Judge Berman’s opinion indicates that the law of the shop imposes decision-making constraints on Goodell that go beyond those collectively bargained in Article 46. This ruling is now binding precedent in this particular federal court and is influential in other courts.
If the NFL loses Brady v. NFL at the U.S. Court of Appeals for the Second Circuit, a more consequential court precedent would be set and it would be binding on other federal district courts in New York, as well as those in Connecticut and Vermont. The precedent would also carry more significant persuasion in other federal district courts than the lower court decision of Judge Berman. The league, in other words, is rolling the dice by pursuing an appeal.
The appeals process could go into 2017 or beyond
In an attempt to encourage a settlement, Judge Berman warned the NFL and NFLPA that Brady v. NFL could last years. He was right. If sometime next year the Second Circuit remands the case back to Judge Berman, he would then conduct a new hearing. Judge Berman would reserve the right to rule on issues that he previously declined to adjudicate, such as whether Goodell was unlawfully partial as the arbitrator. A second decision by Judge Berman could be met with a second appeal to the Second Circuit, with the second appeal not decided until sometime in 2017 or even 2018.
Alternatively, the Second Circuit could affirm or reverse Judge Berman’s first ruling, which would then allow the loser to petition for an “en banc” hearing before the entire Second Circuit. While en banc hearings are rarely granted, petitioning for one would take months to play out. Afterward, there would be an opportunity for the losing side to seek review by the U.S. Supreme Court. This entire appellate process could take several years. While the 38-year-old Brady is expected to play for several more seasons, it’s conceivable that he could retire before the litigation ends. A court would likely render the litigation “moot” at that point and end it.