The NFL Players Association confirmed earlier today it will appeal the court ruling that reinstated New England Patriots quarterback Tom Brady’s four-game suspension over deflated footballs in the 2015 AFC Championship game.
The players union reported it would call for an “en banc” hearing before the 2nd U.S. Circuit Court, which would be heard by all 13 judges rather than a select panel. If the circuit denies the appeal, Brady could try to take his case to the U.S. Supreme Court.
“The facts here are so drastic, and so apparent, that the court should rehear it,” Brady’s attorney Ted Olson told ABC News. Brady recently hired Olson, a former Solicitor General who argued cases including Bush v. Gore and California’s “Prop 8” amendment banning same-sex marriage.
In April, a three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan sided with the NFL over the players union in reinstating the suspension. The panel ruled 2-to-1 that Commissioner Roger Goodell did not deprive Brady of “fundamental fairness” with his procedural rulings.
“Our role is not to determine for ourselves whether Brady participated in a scheme to deflate footballs or whether the suspension imposed by the Commissioner should have been for three games or five games or none at all. Nor is it our role to second-guess the arbitrator’s procedural rulings,” the majority opinion stated. “Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act.”
Brady denied playing a role in any alleged plots to deflate or under-inflate footballs.
In a dissent, Chief Judge Robert Katzmann said Goodell failed to consider a “highly relevant” alternative penalty.
“I am troubled by the Commissioner’s decision to uphold the unprecedented four-game suspension,” Katzmann said. “It is ironic that a process designed to ensure fairness to all players has been used unfairly against one player.”
After the ruling in April, the NFL Players Association said it was disappointed.
“We fought Roger Goodell’s suspension of Tom Brady because we know he did not serve as a fair arbitrator and that players’ rights were violated under our collective bargaining agreement,” the statement said. “Our union will carefully review the decision, consider all of our options and continue to fight for players’ rights and for the integrity of the game.”
Last September, U.S. District Judge Richard Berman lifted the four-game suspension, saying Goodell had treated Brady unfairly. The judge cited “several significant legal deficiencies” on the league’s part, including no advance notice of potential penalties, a refusal to produce a key witness and the apparent first discipline of a player based on a finding of “general awareness” of someone else’s wrongdoing.
The Patriots open the season Sept. 11 at Arizona.