Brady's chance of getting CA2 injunction if he loses here?

A longshot I know, but if any of you practice law in the federal courts, especially if in CA2, I have a question...

As I understand it one does not get a temporary injunction just for asking for it. The petitioner needs to to show a sufficient level of some combination of likelihood of success on the merits and irreparable harm.

So say Brady loses before Berman and appeals to CA2. Presumably he would ask for a temporary injunction pending resolution of the appeal. Any sense of what his odds of getting one would be?

If he loses here I would think he wouldn't have a great likelihood of winning the appeal on the merits unless Berman really screws something up as a matter of law. But weighing against that is the fact that if CA2 doesn't issue an injunction the case would appear to be mooted within 4 weeks. And once a case is moot the federal courts no longer have jurisdiction and must dismiss it (due to the Constitutional "case or controversy" jurisdictional requirement). So even if the CA2 panel that gets assigned the appeal thinks Brady has little chance of winning, if they believe the case should be adjudicated at all it would seem to me they'd have to grant the injunction pending resolution of the appeal.

So any sense of how they'd weigh it and what the result would be?

My totally uninformed layman's opinion is that if Berman rules for the NFL, Brady is ****ed since it's unlikely that an Appeals Court would overturn a Federal Judge upholding an Arbiter's decision under a Labor Agreement. Brady would then have to resort to a defamation claim.

But I admit I don't know what I'm talking about from a procedural point of view, so I'm open to correction by those who do.

You make a persuasive argument that if they plan to take the case at all, they should issue an injunction.

Kevin Williams, in the 8th District, offers a point of comparison.

Further, I'd say that if Berman rules for the NFL, he'd pretty much be saying that other courts in other districts got it wrong. That seems like something an appellate court should be open to reviewing.

PatsFanSince74 said:

My totally uninformed layman's opinion is that if Berman rules for the NFL, Brady is ****ed since it's unlikely that an Appeals Court would overturn a Federal Judge upholding an Arbiter's decision under a Labor Agreement. Brady would then have to resort to a defamation claim.

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True. However, even if Brady ultimately loses the case getting a duration-of-appeal injunction would give very high odds of Brady playing all of the 2015 season and postseason since it would be pretty unlikely (though not impossible) for the appeal process to complete by the first week of February.

My point is if Brady can get an injunction from CA2 he very likely won't be missing games in 2015 due to suspension regardless of what Berman does.

hopefully, one of the legal minds on here with comment.
mccann said it would be highly unlikely. as did some other lawyer that was on D&C...

QuantumMechanic said:

True. However, even if Brady ultimately loses the case getting a duration-of-appeal injunction would give very high odds of Brady playing all of the 2015 season and postseason since it would be pretty unlikely (though not impossible) for the appeal process to complete by the first week of February.

My point is if Brady can get an injunction from CA2 he very likely won't be missing games in 2015 due to suspension regardless of what Berman does.

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It will be very difficult to get an injunction if he loses the case.

The whole idea of an injunction is that you can demonstrate that you can actually win the case, and not being able to (in this case) do your job would be detrimental. That's why they give them out.

If you've already lost the case you're appealing, it's really tough to argue that you've got an ability to win the case...that you just lost.

5%, IMO
( But IANAL)

His chances would be very poor. First, the injunction should first go to the district court. If it is not filed there first and denied, then the appellant must show why it was 'impractical' to request it there (they already wrote a letter to the judge indicating they were declining to apply for an injunction in order to move the case along - that is a preference, not impractical). Second, after an unfavorable ruling, Brady would be asking the appellate court to grant the injunction. Not impossible, but not easy (the Circuit court need not agree with the judge on that and may issue an interim injunction to preserve the appeal).

You are essentially asking for an injunction with an added level of difficulty. The best thing to do is go to the district court if it looks like time is needed for the decision or to preserve the appeal. Then reapply to the Circuit with the denial in hand (if it is denied).

if the 2nd circuit sees a bigger issue here other than brady simply being guilty or innocent, such as the commissioner's power under the CBA, then there is a chance at an injunction.

MassPats38 said:

His chances would be very poor. First, the injunction should first go to the district court. If it is not filed there first and denied, then the appellant must show why it was 'impractical' to request it there (they already wrote a letter to the judge indicating they were declining to apply for an injunction in order to move the case along - that is a preference, not impractical). Second, after an unfavorable ruling, Brady would be asking the appellate court to grant the injunction. Not impossible, but not easy (the Circuit court need not agree with the judge on that and may issue an interim injunction to preserve the appeal).

You are essentially asking for an injunction with an added level of difficulty. The best thing to do is go to the district court if it looks like time is needed for the decision or to preserve the appeal. Then reapply to the Circuit with the denial in hand (if it is denied).

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In other words, you're suggesting that Berman would in effect stay his own order pending appeal, or that if he didn't the district court wouldn't do it for him?

Fencer said:

In other words, you're suggesting that Berman would in effect stay his own order pending appeal, or that if he didn't the district court wouldn't do it for him?

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I've read of many instances where the judge delays their own decision pending appeal. One example where that did NOT happen was the NFL appeal of Judge Doty's Peterson decision (NFL did not ask for injunction) which is why Goodell will be in court later this month to explain why he should not be held in contempt for not following Doty's order.

so if the judge rules in favor of the nfl, brady's done??

Fencer said:

In other words, you're suggesting that Berman would in effect stay his own order pending appeal, or that if he didn't the district court wouldn't do it for him?

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Fencer said:

In other words, you're suggesting that Berman would in effect stay his own order pending appeal, or that if he didn't the district court wouldn't do it for him?

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No. It really doesn't benefit Brady to directly seek an injunction in the Court of Appeals. The court will not reward failing to seek the injunction below.

If Brady wants to stop this suspension, file before the decision and then go to the appeal court to reassert the request for injunction and essentially ask the court for a temporary fix. If the remedy of an injunction is not sought by a plaintiff, then I am not sure it could be done following the judgment.

Bottom line. If there are no reasonable assurances of a decision before September 10th, apply for the preliminary injunction ASAP in the district court. It offers the most options.

Often the appellate injunction is simply a stay of the decision of the district court. Technically a stay of that order does nothing to the suspension (nobody tells the NFL not to proceed with the suspension by halting the order confirming that award), so I believe it has to be an actual injunction on the suspension order.

And strangely, district courts do grant stays of their judgments pending appeal. Given the petition and remedy sought, I am just not certain that is the correct request if the goal is to stop the suspension.

But based on what you said (can't ask for it from the district court post-judgement) shouldn't they actually apply for the prelim injunction right now (or at least after tomorrow's arguments)? Or at least apply for it conditionally (if that's allowed) -- "We're applying for a prelim injunction to go into effect should you rule against us in order to keep the case alive for appeal, etc."?

I'd hate to see them not ask and then have Berman issue a judgement (against Brady) earlier than they were expecting and so be caught without ever having asked the district court for it.

Another thing I've been wondering -- if Brady serves the suspension does that in fact moot the case? IANAL but I could see ways it might not -- it wouldn't moot the matter of the lost game checks and it wouldn't moot the powers-of-commissioner stuff. So that might make a court be even less likely to give Brady an injunction if he loses.

Berman would have to royally screw up for this to happen ...

As of today he not only has not screwed up but he's opened the case for public viewing which I think is good.

Then again I'm not a lawyer and I think it helps greatly to be one here ...

Emotion is the last thing needed in this decision IMO ... lawyers get that - this is not Judge Wapner.

Gronkowski123 said:

so if the judge rules in favor of the nfl, brady's done??

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Not definitively, but it's not a given he'd get an injunction. The appeals court would need to believe he is likely to succeed on the merits of the case. The irreparable harm aspect is a given and doesn't need to be discussed.

raduray said:

I've read of many instances where the judge delays their own decision pending appeal. One example where that did NOT happen was the NFL appeal of Judge Doty's Peterson decision (NFL did not ask for injunction) which is why Goodell will be in court later this month to explain why he should not be held in contempt for not following Doty's order.

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But what decision is delayed while an issue is being appealed? If you mean an appeal of a preliminary injunction, then I would agree that often happens. That may not stop the district court from proceeding toward the final judgment.

Doty vacated the award of Henderson based on him not having the authority to issue the award. The issue thus returned to Henderson to issue an award consistent with his authority. Without seeking an appellate stay (meaning Peterson should get what Doty ordered immediately), the NFL allegedly delayed and sought to have Henderson do exactly what Doty found improper. If the NFL wanted to prevent that with an appeal pending, then it could have asked the trial and/or appellate court to put that judgment on hold pending appeal. It did not do so.

QuantumMechanic said:

Another thing I've been wondering -- if Brady serves the suspension does that in fact moot the case? IANAL but I could see ways it might not -- it wouldn't moot the matter of the lost game checks and it wouldn't moot the powers-of-commissioner stuff. So that might make a court be even less likely to give Brady an injunction if he loses.

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Yes, it moots the case on the suspension, but I suspect that if Berman rules against Brady, there's a good chance the opinion will be worded in such a way that it almost invites Brady to file a defamation suit. [e.g., "I find that there is precious little reason to believe that Mr. Brady has committed any wrongdoing, yet, sadly, I have no choice but to uphold this travesty. . . ."]

Do our odds increase getting the injunction/appeal having a clever lawyer like Kessler making the arguments?