Alan Millstein: Brady's chances of en banc hearing dramatically improved with latest amicus filings

Galeb said:

Last I heard, he's still in a boot after a second surgery.

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****.

JetFan79 said:

Will this be determined by early-August (by the time I have to submit keepers)?

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Define "determined". There are many outcomes.

If CA2 is going to dismiss Brady's request basically out-of-hand we will very likely know that before August. If that happens, Brady will try to get a stay from CA2 and failing that, from SCOTUS. If he doesn't get the stay then he'll definitely serve the suspension. If he does get the stay then there's a decent chance he plays the whole season whether or not SCOTUS hears the case because Brady has 90 days (with apparently easily gettable extensions) to ask SCOTUS to hear the case, then the NFL has to be given time to respond, and then SCOTUS actually has to think about whether to hear the case or not. And if SCOTUS does agree to hear the case he is definitely playing the entire season. (Might even get to play the next season too, depending on whether or not SCOTUS's hypothetical acceptance of the case happens before the 3rd week in January).

If CA2 is going to give the en banc-or-not a honest think, it could take months for them to even decide whether or not to hear it. As noted above, the suspension reinstatement is blocked until en banc-or-not is decided. If they decide not to hear it then we go back to the previous paragraph for what happens. If they do hear it that voids the suspension reinstatement while the whole en banc process runs, which will highly likely take longer than the whole season.

TL;DR: Who the hell knows?

JetFan79 said:

Cool! Good I want to be wrong. I want Brady playing! Where am I wrong? Will this be determined by early-August (by the time I have to submit keepers)?

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a stay of the panel ruling is in place right now, so brady is not suspended.

QuantumMechanic said:

Define "determined". There are many outcomes.

If CA2 is going to dismiss Brady's request basically out-of-hand we will very likely know that before August. If that happens, Brady will try to get a stay from CA2 and failing that, from SCOTUS. If he doesn't get the stay then he'll definitely serve the suspension. If he does get the stay then there's a decent chance he plays the whole season whether or not SCOTUS hears the case because Brady has 90 days (with apparently easily gettable extensions) to ask SCOTUS to hear the case, then the NFL has to be given time to respond, and then SCOTUS actually has to think about whether to hear the case or not. And if SCOTUS does agree to hear the case he is definitely playing the entire season. (Might even get to play the next season too, depending on whether or not SCOTUS's hypothetical acceptance of the case happens before the 3rd week in January).

If CA2 is going to give the en banc-or-not a honest think, it could take months for them to even decide whether or not to hear it. As noted above, the suspension reinstatement is blocked until en banc-or-not is decided. If they decide not to hear it then we go back to the previous paragraph for what happens. If they do hear it that voids the suspension reinstatement while the whole en banc process runs, which will highly likely take longer than the whole season.

TL;DR: Who the hell knows?

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Thanks. Had an idea of all of that. But good to see it laid out. Would have to figure at least 60% in favor of Brady playing all of 2016 if he's willing to take this to SCOTUS.

Didn't realize the suspension was ... well suspended, until the current appeal decision is made. Though I'd have to imagine that comes before August. I'd actually venture a very uneducated guess of early to mid-July.

Which is why I'm hoping to hear a request for the NFL's response soon. Don't think they'd rule in Brady's favor to hear the appeal w/o asking for the response.

Not that asking for the NFL's response guarantees an appeal, but it'd certainly be good news.

QuantumMechanic said:

Not correct. Filing the request for en banc review automatically stayed the panel order reinstating the suspension. That stay remains in effect until 7 days after CA2 decides whether or not to grant en banc review. However, if they do grant en banc review that automatically vacates the panel decision and the panel order, so there would be no need for a stay while the en banc process runs.

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Respectfully, I disagree. Any authority for your position?

seeing the supreme court being mentioned in the news wire.

leads me to believe that brady's ppl dont believe they'll get a rehearing which sucks. but it was always a long shot

Gronkowski123 said:

seeing the supreme court being mentioned in the news wire.

leads me to believe that brady's ppl dont believe they'll get a rehearing which sucks. but it was always a long shot

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I don't think you can read anything into it because why would Brady's team be looking into and pushing for both options at once?

judge livingston is a Bush appointee.

JetFan79 said:

Don't think so. Technically now the suspension is in place unless the appeal is accepted. Though it doesn't mean much. You'd have to figure a decision comes before camp.

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Technically the suspension, as of my writing these words, is lifted.

The CA2 Appeals Court did not reinstate the suspension. They ordered Berman to reinstate the suspension. Berman has not done so yet, and will not do so until en banc is resolved (and even then Brady has another avenue of appeal).

If the current holding pattern we are in continues and CA2 has still not decided whether or not to allow an en banc hearing come August, September, October, etc, then Brady plays.

QB12 said:

Respectfully, I disagree. Any authority for your position?

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He's right, Mike McCann said the same thing as QM.

Tweeted Daniel Wallach, he says the delay is good news because that means they are considering it, and the amicus briefs gave them food for thought. So, I'd rather have heard one way or the other, but nothing in this whole ordeal has been fast so why would this part?

blackglass3 said:

Tweeted Daniel Wallach, he says the delay is good news because that means they are considering it, and the amicus briefs gave them food for thought. So, I'd rather have heard one way or the other, but nothing in this whole ordeal has been fast so why would this part?

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One man's opinion, but a dissenting opinion would be another huge boost to the en banc taking on Brady's case (as I understand it).

Daniel Wallach‏@WALLACHLEGAL
Another day w/ no Adrian Peterson decision from the 8th Circ. Prospect of divided court with a dissenting opinion may explain the delay.

Danger Zone said:

One man's opinion, but a dissenting opinion would be another huge boost to the en banc taking on Brady's case (as I understand it).

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Right now the Peterson trial court decision and the CA2 panel appellate decision are at odds, with a CA8 panel currently (for 235 days and counting) reviewing the trial court.

We want CA8 to uphold the trial court decision, for two reasons.
1) while it is not binding precedent, it may give CA2 something more to think about and perhaps make them more likely to grant en banc in the first place and maybe make them more likely to side with Brady if they do.
2) if CA2 denies en banc or grants it but issues an anti-Brady decision, there would then be a so-called "circuit split" between CA8 and CA2. That will increase, but by no means guarantee, the chances of SCOTUS taking the case.

Since we want CA8 to uphold the lower court we probably want the panel decision to be 3-0, with a clear, forceful argument upholding the lower court. 2-1 to uphold is good but probably not quite as good, especially if the dissenter writes a strong dissent. On the flip side, if it goes 2-1 against Peterson we at least want a strong dissent to hopefully make the judges in CA2 or SCOTUS think about it.

What is taking the Peterson case so long?

JetFan79 said:

Cool! Good I want to be wrong. I want Brady playing! Where am I wrong? Will this be determined by early-August (by the time I have to submit keepers)?

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Nobody f#king knows despite whatever anyone posts on here. You'll just have to wait like the rest of us.

QuantumMechanic said:

Right now the Peterson trial court decision and the CA2 panel appellate decision are at odds, with a CA8 panel currently (for 235 days and counting) reviewing the trial court.

We want CA8 to uphold the trial court decision, for two reasons.
1) while it is not binding precedent, it may give CA2 something more to think about and perhaps make them more likely to grant en banc in the first place and maybe make them more likely to side with Brady if they do.
2) if CA2 denies en banc or grants it but issues an anti-Brady decision, there would then be a so-called "circuit split" between CA8 and CA2. That will increase, but by no means guarantee, the chances of SCOTUS taking the case.

Since we want CA8 to uphold the lower court we probably want the panel decision to be 3-0, with a clear, forceful argument upholding the lower court. 2-1 to uphold is good but probably not quite as good, especially if the dissenter writes a strong dissent. On the flip side, if it goes 2-1 against Peterson we at least want a strong dissent to hopefully make the judges in CA2 or SCOTUS think about it.

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I don't see any relationship between the Peterson case and Brady's case at all. I may be wrong, if so let me know.
I get that a split between two circuit courts is an argument but if they are different arguments then why would it matter?

venecol said:

I don't see any relationship between the Peterson case and Brady's case at all. I may be wrong, if so let me know.
I get that a split between two circuit courts is an argument but if they are different arguments then why would it matter?

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I haven't followed the Peterson case but I am under the impression that it also has to do with notice:

The issues on appeal in the Peterson appeal differ from Deflategate, but (at least in the NFLPA/Brady’s view) relate to how Deflategate should be decided. They include:

• Whether Judge Doty accurately concluded that the NFL’s arbitration officer (Harold Henderson) exceeded his authority by considering whether the suspension Peterson received was consistent with the Personal Conuct Policy in effect at the time of his conduct (instead of just looking at whether the new policy was retroactively applied).
• Whether Judge Doty accurately concluded that the NFL failed to provide Peterson with adequate notice that he could be suspended for a season for this type of conduct

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The Biggest Wildcard in Deflategate? Adrian Peterson.

venecol said:

Nobody f#king knows despite whatever anyone posts on here. You'll just have to wait like the rest of us.

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Well if Brady is denied the appeal and it goes to SCOTUS, at least Ruth Ginsberb makes the decision. I picture her as a big Fantasy player. She should decide quickly to help people figure their rosters.

QuantumMechanic said:

I haven't followed the Peterson case but I am under the impression that it also has to do with notice:


The Biggest Wildcard in Deflategate? Adrian Peterson.

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Thanks for the link. I found it ironic that the article says the 8th CA is the fastest of all the appellate courts in issuing a final disposition of a case, estimating a decision would be made before March 3rd. If the 8th is the fastest, we may be waiting for a long time on the 2nd. Maybe Berman was right when he warned both parties that this could drag out for years.

I don't care how long a decision in the 2nd takes, it could take 5 years for all I care. All I want is for them to allow the case so that Brady is playing this season.