All But Over: A Legal Guide to the Rest of Deflategate

Earlier today, Smackdad had a piece about how the Second Circuit Court of Appeals denied Tom Brady's request for a rehearing, or, in the alternative, a hearing en banc. You may be hearing that it's over, and you may be hearing that Brady is going to the Supreme Court. Let me lay it out for you.

It's all but over.

There are very few cases that have what's called "original jurisdiction" with the Supreme Court. Typically, they work their way through the trial court, an appeals court, and then the party that thinks they've been wronged by the courts can file a writ of certiorari. Like Brady's request for a rehearing or an en banc hearing, it is very rare that the Supreme Court accepts a case. Currently, they only accept 1% of all cert. petitions. They don't care if you're famous, they care if there is a reason why their judicial opinion is actually needed. Often, this takes the form of a case of first impression (which means there is no commonly accepted legal determination on the subject), or where there is a split among the courts in how cases of that type are decided.

Here, Brady's case is not new. It is well-settled law that an arbitrator's decision is almost impossible to overturn. There are explicitly delineated circumstances in which overturning a decision is proper. One of the bases for Brady's appeal is that the arbitrator's findings of fact were incorrect; the arbitrator misstated what actually happened. Let's be clear; this is not a valid basis for overturning an arbitrator's decision, which is why it's well-settled and there's nothing new, legally, in this case.

Now, to make things even more difficult for Brady, the Supreme Court is currently out-of-session, and they won't return until after his four-game suspension is up. As far as I can tell, the Supreme Court has never held an oral argument out-of-term. Technically, they can resolve an emergency petition, but those are typically reserved for things like the death penalty. Ruth Bader Ginsberg is the justice in charge of all appeals from the Second Circuit, so it is up to her to decide to accept the emergency petition, or she can forward it the entire court for their consideration, in which case Brady would need five votes to grant the stay. There are several factors that weigh into whether they grant the stay, but for purposes of simplicity, I'll just say they weigh against Brady heavily.

If Brady were to file his cert. petition today, the NFL would have thirty days to respond, and Brady would have an additional fourteen days to reply to their brief (although he can waive that fourteen-day period). The first conference that the Supreme Court will hold to determine if they would accept the case is on September 26, after three of the four suspension games will have been served. At the conference, Brady will need four votes just to take the case. If they were to do that, at the earliest, their first oral argument isn't scheduled until October 4, which is after the fourth game.

Obviously, this is a football blog, so I've tried to keep the law as simplified as I can. But I can bet you'll hear a ton of uninformed wailing from both the punditry and the cheap seats, so it will serve you well to be informed on how the process actually works. The moral of the story, though, is that Brady not only faces an uphill climb while carrying Sisyphus' rock, but the clock has already started running.