Note: Law Newz by Dan Abrams ran the article below on May 23, 2016, here.
“There is a principle which is a bar against all information, which is proof against all argument, and which cannot fail to keep man in everlasting ignorance. That principle is condemnation before investigation.” —Edmund Spencer
Back in August 2015, before New York U.S. District Judge Richard Berman decided in New England Patriots Star-Quarterback’s favor that he should not serve the four-game suspension handed down by National Football League Commissioner Roger Goodell, we discussed and predicted that Tom Brady would be exonerated. You can read that article here. The Seven Reasons we mentioned in that article still apply today.
Here, we are going to take it a step further and add that National Football League Commissioner, Roger Goodell, will actually lose this battle and the war for the same reason he has fought so hard to condemn its poster-player in Tom Brady. Specifically, Roger Goodell has quoted from League Rules and commissioner power that in the 'good of the League' and the sanctity of his authority, Tom Brady should be punished. Unfortunately for Goodell, his hasty pursuit of Tom Brady will only result in one or two things: a complete legal victory for Tom Brady or Tom Brady’s retirement before serving one minute of any suspension.
For Tom Brady, this is about his legacy, reputation, as much as is it about player freedom and the future of the National Football League and the Player’s Union. If Goodell thinks that he can keep up the legal battle against Brady without financial and reputation consequences, he is mistaken. If he doubts Brady’s resolve, we need look no further than the football field where he has been denied so many times before. One thing is certain, Brady is much like basketball-star Michael Jordan in that when challenged, denied an opportunity, or accused, like champions they rise the occasion.
Most legal analysts have laid claim that Tom Brady has no chance at winning by securing the next legal victory, which is either a full en banc Court of Appeals review and/or United States Supreme Court certiorari review. Legal analysts point to the letter of the law where en banc reviews are hardly, if ever, given or successful if given. You can read those articles here and here. If interested, Sports Illustrated legal analyst Michael McCann provided an in-depth review of a potential en banc hearing here.
However, you do not need to be Patriots fan to see that Tom Brady has a path to victory. We will list them as follows:
1. By filing the appeal, Brady may guarantee that he starts the season for the New England Patriots in 2016-2017.
2. We cannot forget the reasons Tom Brady appealed the suspension in the first place.
3. We must remember that the tide of player, team, and public opinion has changed in favor of supporting Tom Brady.
The Appeal
Tom Brady, by appealing for an en banc review, has now extended the time it will take for a decision to be made by the Court, which increases the likelihood that he will play the first four games of the 2016-2017 season. Secondly, Brady can move the court for a stay on making a decision as it comes closer to the start of the season. Third, even if the en banc review is denied, Brady can ask for a stay as he applies for certiorari with the United States Supreme Court to hear his case. Depending on the time taken for each of these scenarios, we could be looking to at least the beginning of the 2017-2018 season before a decision is made.
In case you forgot, Brady signed a two-year contract with the Patriots and the 2017-2018 season would be his last season in the League unless he signs another extension. Brady has stated he wants to play into his forties. However, should Brady win another Super Bowl for the 2016-2017 season, or the 2017-2018 season, the prospect of him retiring at a personal and team high would be ideal. More on that later.
Remembering why Tom Brady appealed in the first place points to his devotion and perseverance
Much has been written about this matter and the fairness or lack thereof given to Tom Brady, the players, and their Union. In “Seven Reasons why Tom Brady will be 'Exonerated'”, we explained the situation as follows in regards to the reasoning behind the appeal:
“Here are a few more words. Judge, Jury, and Executioner. Heard of the saying? It plays well here because if someone told you that, in a disciplinary matter, that there would be one person that would hire the investigator, help write and edit the eventual report from the investigator, be the boss and employer of the person (Troy Vincent) who issued the initial decision in writing, hired the attorneys to argue in favor of the report at the initial hearing, and at the appeal, and that this one person would also be the judge, jury, and decision-maker at the appeal, you would be surprised, as it smacks in the face of anything and everything we hold dear as Americans with regard to Due Process of the Law. However, this is what has happened under Goodell’s leadership with this matter and many more like it.
Forget what has been collectively bargained, being the Commissioner does not mean you can go above the law. This entire situation is truly troublesome as the initial report of low PSI levels was reported by a rival Patriots rival general manager, the Indianapolis Colts, and the same team that lost 45-7 in the 2015 AFC Championship game and 42-20 during the regular season (no motivation there at all, right?). All the while, a current NFL employee and former New York Jets player (also a Patriots rival, a bitter rival some would say) was involved with the initial fact-finding and reporting of Deflategate.”
From a young age, through high school, college, and into Tom Brady’s beginning with the National Football League as a quarterback playing behind Drew Bledsoe, he has had to prove himself again and again. If anyone doubts Brady’s resolve, he just hired two more of the best lawyers in the Country to lead his cause. You can read more about that here. Ted Olson and Thomas Dupree Jr. anyone? Brady, like the All-State Insurance commercial, is in “Good Hands.”
The above does not speak of someone who will be giving up anytime soon. Tom Brady’s reputation, freedom to play football, and the future handling of player matters is at stake. Brady’s colleagues should thank him for taking the fight to Goodell and not backing down. Curt Flood would be proud. Like or dislike Tom Brady and the New England Patriots, he has shown courage in fighting Roger Goodell.
Private and Public Opinion has changed, Goodell’s pride will come before the fall
Remember the quote at the beginning of this article? Please go back and read it if not. Throughout history, many have unfortunately let their pride get in the way of knowing and learning. Commissioner Goodell should have never allowed the predisposed investigation to begin with and every step since that point has been a misstep that has harmed the League, the Union, the Owners, and most importantly the fans.
Sadly, Goodell has made many more mistakes with player personnel issues. Goodell dragging the National Football League through the court system again, while spending the Owners and fans money will not last forever. At this point, both Goodell and Brady are fighting. Goodell is fighting to keep his job by winning the case against Brady. Do we think for one second that Goodell will stay if he loses millions of dollars and time fighting against Tom Brady? Brady is fighting for the freedom to play football. New Englander’s like Paul Revere would be proud. Drew Bree’s support of Tom Brady is just another sign of the changing tide. You can read more about that here.
In the end, all Goodell has done is to create a contentious environment with the players and the Union when their collectively bargained agreement comes to an end in 2020. One thing is certain, Commissioner authority over disciplinary matters will be on the table for discussion for the next labor negotiations. In some sense, because Goodell has already lost time, money, and public opinion, Brady has already won.
About the author: Jeremy M. Evans is the Managing Attorney at California Sports Lawyer, representing sports and entertainment professionals in contract drafting, negotiations, licensing, and career growth. He provides legal advice and general counsel services for businesses, which includes development, contract drafting, review, negotiations, protection, and compliance. He is the Director of the Center for Sports Law & Policy at Thomas Jefferson School of Law in San Diego, California, where he is also an Adjunct Professor of Sports Law. Evans is an award-winning attorney and community leader. He can be reached at Jeremy@CSLlegal.com or via his website: www.CSLlegal.com.
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