Tom Brady, NFLPA Granted 14-Day Extension To File Motion For Rehearing By Second Circuit Court

As I read the draft, it looks to me as though Olson is telling CA2 that 2 of 3 of their judges ruled in conflict with SCOTUS, that the consequences are enormously harmful to established rules of labor law arbitration in the large, and that they have an opportunity to fix it before SCOTUS gets to embarrass them by fixing it.

I think he is politely threaten to embarrass them unless they collectively step up.

Thanks to those who posted links to the Draft Appeal (it's clearly marked as a draft, but there's little reason to think that the filing will be materially different).

I've only read through it once quickly and I'm sure I missed a lot, but here are my initial observations, subject to correction by people who've actually filed material like this.

1) The main case is made in plain, eighth grade English, so it's intended audience is much broader than the Court.

2) It tries to frame this as a case that goes to the heart of the rights of labor and argues that the finding undermines both labor and management by defying what it argues is long settled practice.

3) It mentions time and again the shifting justifications given by Goodell and is withering in its discussion of the "independence" of the Pash Wells report.

4) It repeatedly quotes Katzmann as the "Chief Judge" of the court.

5) Bottom line: they're going "scorched earth" and have decided that even if they lose, they're going to do everything in their power to embarrass Goodell. The fact that Olson, who as Solicitor General sold GWB to SCOTUS as the legitimate claimant to the Presidency, went on ABC this morning suggests that they're going to play this out in the press. That is a Hail Mary move that anybody but someone of Olson's stature would have trouble pulling that off with an Appeals Court without risking their wrath. Olson has many friends in the Media, who no doubt owe him a lot of favors; I think we can see a steady drip of leaks and stories over the next few weeks.

My personal view is that it's still 50-50 at best that they will get the review, but they've decided to go all the way.

I find it interesting that a draft was leaked. I have to think it could only have come from Gibson Dunn (where else could it have come from).

But why the leak? This'll be publicly and easily available once it's filed with PACER today. So why bother?

PatsFanSince74 said:

The fact that Olson, who as Solicitor General sold GWB to SCOTUS as the legitimate claimant to the Presidency

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Keep politics out of it.

BelichickFan said:

What I still have never had an answer on :

If the 2nd circuit rejects this and they file to the USSC - assume the USSC rejects hearing it, how long does it take for that rejection to take ? Assuming the suspension would be stayed while they decide, would that get us through this season ?

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I posted something the other day from a media guide produced by SCOTUS. It said (IIRC) that it takes on average about 6 weeks for SCOTUS to decide whether or not to hear a case. One complicating factor is that the SCOTUS term ends by the end of June. Between then and the first Monday in October, the petitions just pile up and then the decisions all get released then.

So if NFLPA asked SCOTUS to hear the case, I doubt we'd know SCOTUS's decision any earlier than the first week of October. However, I wouldn't count on a denial not coming until after the season's over. Also, aside from a big chance of a denial (or an grant) coming down at the beginning of October there really won't be any warning, so it'll be hard for Brady and the team to plan. It is quite possible Brady and the team might find out about the denial (and thus the reinstatement of Brady's suspension) only a couple of days before a game.

Disappointed there is still no mention of whether Brady is guilty or innocent.

Jimke said:

Disappointed there is still no mention of whether Brady is guilty or innocent.

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That's because that's not what this case is about, but they did include the following:


Although the NFL conceded there was no direct evidence linking Brady to any ball tampering, JA1421, and Brady has consistently proclaimed his innocence, the Wells Report found it “more probable than not” that two Patriots equipment employees “participated in a deliberate effort to release air from Patriots game balls” before the Championship Game. The Report also found it “more probable than not that Brady was at least generally aware of the inappropriate activities” of the two employees. JA112, 97. The Report did not find that Brady himself participated in or directed any ball deflation, JA112, and the work of the consultants Paul Weiss hired to deny that environmental factors accounted for the pressure levels has been derided by independent physicists as junk science.

Jimke said:

Disappointed there is still no mention of whether Brady is guilty or innocent.

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Called the evidence of deflation "junk science."

Jimke said:

Disappointed there is still no mention of whether Brady is guilty or innocent.

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That's not really an issue on appeal. However, the panel opinion noted that the facts of the case could be reviewable de novo, so....

As much as I respect Kessler for his abilities as a labor lawyer this filing shows just how far he was out of his depth in a setting that required a constitutional lawyer. The only rebuttal, to a constitutional argument was a counter constitutional argument and he wasn't prepared to make that argument. Olsen does just that by arguing that CAII was supposed to be guided by precedents set by prior labor cases in the Supreme Court and they ignored that in favor of Clement's argument that Garvey gave Goodell the authority to do as he pleased.

Olsen really challenged the court and finding in such a way that it's going to be very hard for them to ignore it. I think Brady's legal team was worth every penny and the court is going to grant the En banc hearing, and if not they have made a compelling argument to get this to the Supremes.

Jimke said:

Disappointed there is still no mention of whether Brady is guilty or innocent.

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Page 4, 1st sentence of the last paragraph: "Although the NFL conceded there was no direct evidence linking Brady to any ball tampering, JA1421, and Brady has consistently proclaimed his innocence, the Wells Report found it 'more probable than not' that two Patriots equipment employees 'participated in a deliberate effort to release air from Patriots game balls' before the Championship Game."

How much more do you need? The case is no longer about guilt or innocence, but they put that out there anyway.

So, yeah. I'd love to know why it was leaked/released.

Dan Werly ‏@WerlySportsLaw 57m57 minutes agoAugusta, GA
As some have pointed out, the release of a "draft" filing is extremely unusual, if not unheard of. Will there be changes on the final??

XLIX said:

That's because that's not what this case is about, but they did include the following:


Although the NFL conceded there was no direct evidence linking Brady to any ball tampering, JA1421, and Brady has consistently proclaimed his innocence, the Wells Report found it “more probable than not” that two Patriots equipment employees “participated in a deliberate effort to release air from Patriots game balls” before the Championship Game. The Report also found it “more probable than not that Brady was at least generally aware of the inappropriate activities” of the two employees. JA112, 97. The Report did not find that Brady himself participated in or directed any ball deflation, JA112, and the work of the consultants Paul Weiss hired to deny that environmental factors accounted for the pressure levels has been derided by independent physicists as junk science.

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Thanks for the info. Maybe the truth will leak out.

QuantumMechanic said:

So, yeah. I'd love to know why it was leaked/released.

Dan Werly ‏@WerlySportsLaw 57m57 minutes agoAugusta, GA
As some have pointed out, the release of a "draft" filing is extremely unusual, if not unheard of. Will there be changes on the final??

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My best guess is @PatsFanSince74 's theory. Scorched earth - they want this out as soon as possible and dominating the airwaves all week. Any changes between this and the final version will be trivial and cosmetic in nature.

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BelichickFan said:

Keep politics out of it.

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Actually, that's not "politics." It's about brass knuckles and big brass balls at the highest level, where how you "do your job" is at least as important as the "truth."

Olson is one of the most visible lawyers in the country for one reason and one reason only: Bush v. Gore (yes, his wife died tragically in one of the planes on 911, but that would have receded from most people's memories by now). Only people who know the "inside baseball" of DC even know who the Solicitor General is or was (if you can name the current SG without going to Google, you are an exception to the rule).

In Bush v. Gore, it was Olson's job to sell GWB as the legitimate claimant to the presidency and have the recount stopped. It was David Boies' job to sell Gore as a legitimate claimant who had not had a fair chance at making that claim.

The Supreme Court, in one of the most important cases in its history, concluded that Olson "did his job" and that Boies didn't.

Olson and Brady discuss strategy:

QuantumMechanic said:

I find it interesting that a draft was leaked. I have to think it could only have come from Gibson Dunn (where else could it have come from).

But why the leak? This'll be publicly and easily available once it's filed with PACER today. So why bother?

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Clearly the leak was "authorized," as a very small number of people would have had access to this document and the source could easily be identified. Whoever did it, was acting on Olson's instructions.

To me this means that they have, as I said above, decided to go "scorched earth."

Olson is effectively putting the NFL on notice that he's just as concerned about doing as much damage as he can and making his case in public as he is about winning or losing this particular appeal. Olson knows how to play this game from Bush v. Gore days when he was working hand in hand with Jim Baker, who never saw a possible leak that he didn't try to make.

As to where it came from, it could have been Gibson Dunn or the NFLPA or even someone acting at Brady's direction. I really doesn't matter.

Hammer of Thor said:

My best guess is @PatsFanSince74 's theory. Scorched earth - they want this out as soon as possible and dominating the airwaves all week. Any changes between this and the final version will be trivial and cosmetic in nature.

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Absolutely this. They wanted to get in front of the NFL spin machine. When the NFL responds, the NFLPA will respond....

Plus it's obvious the judges don't really dig into the issue and only hear the spin...like Chin.

BelichickFan said:

Keep politics out of it.

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Hard to do because this case is way bigger than Brady and the NFL. This case goes to the heart of labor law - and thus, it will be (it already is) political.

Nothing wrong with the post to which you responded because it wasn't judgmental of Olsen's actions in Bush v. Gore (or his actions in the gay rights cases, for that matter). I see no reason why politics isn't legitimate in this, even here, as long as it's neither pejorative or side-taking.

Whether I agree with Olsen or not - on anything - is irrelevant to the fact that he's a brilliant legal mind, particularly in the public/political arena. I'm glad he's on Brady's team (and doubly so because of the wider implications on labor law).

Hammer of Thor said:

My best guess is @PatsFanSince74 's theory. Scorched earth - they want this out as soon as possible and dominating the airwaves all week. Any changes between this and the final version will be trivial and cosmetic in nature.

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Yeah -- that's my gut feel, too.