You knew he was going down this road when he lawyered up with Ted Olsen in April.
Patriots quarterback Tom Brady has officially filed a petition seeking a reversal of the 2nd U.S. Circuit Court of Appeals decision to uphold his Deflategate suspension levied by the NFL.
Olson on Monday morning told ABC News in an interview aired on “Good Morning America” that the NFLPA plans to file the appeal later today.
“The facts here are so drastic and so apparent that the court should rehear it,” Olson said.
The Manhattan federal court ruled 2-1 on April 25 that NFL Commissioner Roger Goodell was within his rights to suspend Brady for four games for his role in the deflation of footballs used in the 2015 AFC championship game against the Indianapolis Colts in Foxborough.
Brady was granted an extension to May 23 to appeal, and now the 2nd Circuit must decide to have the full panel hear the case.
— Michael McCann (@McCannSportsLaw) May 23, 2016
Brady will appeal en banc, asking the entire panel of the 2nd U.S. Circuit Court of Appeals to participate in the hearing. Seven of the 13 judges would have to agree that an en banc session is the right decision before a hearing is held. In the last 10 years, the 2nd Circuit has taken only three of 100 cases to a full court hearing. The Court is expected to rule on Brady’s appeal over the next four to six weeks (or a split second in Deflategate years).
If the en banc session isn’t granted, Brady could take his case to the U.S. Supreme Court, which would most likely not accept this type of case.
“Our two primary arguments are that the commissioner in the first place conducted an investigation and then the commissioner imposed discipline. Then the commissioner appointed himself as an appellate judge or an arbitrator and then decided something new in the appellate process, abandoning the grounds that were the original basis for the supposed discipline,” Olson told ABC News. “That’s No. 1, and an appellate judge is supposed to look at the record and make a decision on the basis of what happened before. He departed from what happened before. Secondly he ignored important provisions of the CBA about discipline that might be imposed for equipment violations. He departed from that completely and went off the track.”
Thomas Dupree from the D.C. law firm Gibson, Dunn and Crutcher was also added to the Brady legal team last week. Dupree was George W. Bush’s attorney in Bush vs. Gore, the case that decided the 2000 presidential election.
The reversal of Judge Richard Berman’s decision in a 33-page release by the 2nd U.S. Court of Appeals on April 25.
“We hold that the Commissioner properly exercised his broad discretion under the collective bargaining agreement and that his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness,” from the ruling in April. “According we REVERSE the judgement of the district court and REMAND with instructions to confirm the award. Chief Judge Katzmann dissents in a separate opinion.”
Brady recently signed a two-year contract extension with the Patriots that reduced his 2016 salary from $9 million to $1 million that could save TB12 almost $2 million in lost salary during a four-game suspension.
If Brady is suspended for the first four games of 2016, he would miss games against the Arizona Cardinals, Miami Dolphins, Houston Texans, and Buffalo Bills. He would be eligible to make his regular-season debut in Week 5 against the Cleveland Browns.
For more on Brady fighting the NFL, read Jason Wolfe’s piece: Keep Fighting Tom.