Tom Brady's case is no longer about deflated footballs or a four-game suspension -- it's about the fundamental rights of American workers and a dangerous threat to industrial peace in America. At least that's the case Brady and his new lawyer, Ted Olson, are not only trying to make but sell to the U.S. Supreme Court. To do so, they've assembled an all-star team of labor leaders, scholars and experts.
According to Olson and his impressive supporting cast, the court decision in April that reinstated Brady's suspension threatens the "rule of law" in the U.S. and is an "egregious misstatement" of American employment law.
At the moment, Olson's attack on the 2-1 decision against Brady in the U.S. Court of Appeals for the 2nd Circuit comes in the form of a petition in the same court for rehearing "en banc," a demand that all available judges on the high court consider his plight and reverse their colleagues' earlier decision. It's something that rarely happens in the 2nd Circuit Court. There have been only three en banc hearings in the court in the past five years, according to Catherine O'Hagan Wolfe, the court's clerk.
But reason tells us that Brady and the NFLPA did not hire Olson to do a petition for rehearing en banc. They hired him for the next step -- a petition to the Supreme Court. Olson has argued 62 cases in the high court, prevailing in 75 percent of them. Olson is to the legal profession what Brady is to pro football -- one of the all-time greats. He will be matched up against the NFL's Paul Clement, another talented and seasoned appellate advocate who led the league to victory over Brady in the 2nd Circuit.
If Olson can persuade four of the eight justices now on the high court that they must consider and decide Brady's case, it would not be resolved until the spring of 2017. It is difficult to predict the time that judges in these courts will spend making these decisions, but if Brady, who will be 39 on Aug. 3, succeeds in the 2nd Circuit or in the Supreme Court, he is likely to be able to play the entire 2016 season.
To aid their efforts, Olson and Brady and have put together an impressive team. Shortly after Olson entered the fray, supporting briefs were filed by the AFL-CIO, a group of 11 labor law scholars, another group of engineering professors that includes 10 from MIT, and the nation's most famous arbitrator, Kenneth Feinberg, whom Olson reached out to directly. Even the Patriots organization, which had maintained some distance from Brady's legal case, filed a brief in its quarterback's support as part of Olson's package.
Asked why he offered his thoughts on Brady's behalf, Feinberg, a man known throughout the legal profession for his fairness and objectivity, told ESPN.com, "I had followed the case with interest, and when Ted Olson called, I decided very quickly that I would intervene in what was a very unfair arbitration process.
"It's a notorious case. People know about it, and it's the kind of case that, if not reversed, could damage our system of arbitration."
All of this support for Brady came in the form of "amicus" briefs, written arguments that are offered as a "friend" of the court, a common practice the Supreme Court but highly unusual in a petition for rehearing en banc.
With the exception of the Patriots' brief, the amicus briefs supporting Brady follow Olson's lead, asserting that the 2-1 decision against Brady could lead to the destruction of labor arbitration, a pillar of the American economy that must be preserved and can be saved only by a decision for Brady and against Goodell and the NFL.
Olson and his labor law arbitration experts agree that Goodell's worst errors in the arbitration were adding a second charge of misconduct as the result of Brady's refusal to cooperate with NFL investigators and his destruction of his cell phone, as well as Goodell's refusal to give Brady and his lawyers access to the notes that NFL investigators took during the Wells investigation.
It is unfair, according to Olson and his experts, for Goodell to add charges against Brady when he and his legal team had no chance to gather and to produce evidence that would answer the new allegations.
"The panel [2nd Circuit] decision will harm not just NFL players, but all unionized workers," Olson argued. "Labor arbitration will become a source of turmoil rather than a fair and consistent method of dispute resolution under the rule of law."
It's an argument that Olson must make. To have any chance of a rehearing en banc in the 2nd Circuit or to gain acceptance in the Supreme Court, Olson must be able to show that a dispute involving the deflation of footballs and conduct detrimental to the NFL is a matter of exceptional importance and national significance.
Olson's addition of the AFL-CIO, the labor law professors, and Feinberg to the Brady team is a major step toward achieving that goal. Olson and his supporting cast do not use the word "catastrophe" in their briefs, but they might as well have. Olson argued that the decision "cripples the ability of employees to challenge discipline" and makes "labor arbitration a source of turmoil rather than a fair and consistent method of dispute resolution under the rule of law."
While Olson, the professors' and the AFL-CIO's briefs relied on abstract statements about procedural integrity, Feinberg crystallized the matter succinctly: "The commissioner blindsided Brady with the second charge, and he obviously should have given Brady the notes from the investigators. It is a matter of simple fairness."
Feinberg wrote in his brief that Goodell's decision "is a clear signal to the public that due process can be ignored." It must be reversed, Feinberg wrote, "or the public should -- and will -- lose faith in the systems of arbitration and private dispute resolution that have become a parallel component of our justice system."
Reminded that all of the deflation of footballs and the destruction of evidence charges against Brady fell under the collective bargaining agreement's provision that allowed Goodell to decide all "conduct detrimental" cases, Feinberg said, "Yes, but his authority is not unfettered. He must act in a way that is fair to both sides."
Lynn Rhinehart, the general counsel of the AFL-CIO, agreed with Feinberg that Goodell was unfair, suggesting that "it appeared that the commissioner was acting as an advocate for his own decision on discipline."
Asked why the AFL-CIO would intervene in a case involving the deflation of footballs, Rhinehart said, "the NFLPA is one of our 57 affiliated unions, and the fairness and integrity of arbitrations procedures is critical to our membership."
Agreeing that federal courts typically show deference to arbitration decisions, Rhinehart said that the Brady arbitration "is not typical of arbitrations that are entitled to deference. The commissioner was limited to a review of the action taken [the four-game suspension], and he cannot be allowed to pile on with additional charges."
The labor law professors echo Olson's warning that the sky is falling on workers, asserting that Americans "will no longer be able to trust arbitration as a fundamentally fair process, thereby discouraging its use as a dispute-resolution method that protects industrial peace."
The professors, who describe themselves in their brief as "prominent academic experts in labor law and industrial relations" who wish to "share their considerable expertise concerning the workplace," assert that Goodell is a "non-expert, non-experienced, and non-neutral arbitrator" and that his decision on Brady presents a "significant question of national labor law."
Anne Marie Lafaso, a law professor at West Virginia University College of Law who wrote the professors' brief, says that Goodell's decision is the product of "an angry arbitrator who does his own brand of industrial justice."
The NFL legal team will likely look to push back on a number of fronts: The labor law professors do not mention in their brief that the NFL Players Association agreed in collective bargaining to give Goodell authority over matters of conduct detrimental to the league and allowed him to serve as the arbitrator in player appeals. The CBA provision will be a central argument for the NFL if it is ever required to respond to Olson's arguments. The NFL will also, if requested, remind the 2nd Circuit and the Supreme Court that arbitrators working under provisions of a CBA are entitled to deference and should be reversed only in the most egregious of cases.
Olson labeled Goodell's arbitration decision as "biased, agenda-driven, and self-approving" and emphasized that Goodell upheld the suspension on "different grounds that were not the basis for his original disciplinary action." Although the charge against Brady was conduct detrimental to the league, a charge that Goodell is free to define under the CBA, Olson's hope is that adding the destruction of evidence charge and the severity of the punishment will be enough to obtain either a rehearing or consideration in the Supreme Court.
While Olson, Feinberg, and the labor law professors avoided statements on whether Brady was innocent or guilty and relied on principles of industrial due process in their arguments, the Patriots used their amicus brief to assert that Brady was wrongfully accused.
The team asserted in its brief that it "strongly believes that nobody tampered with the footballs" and that Brady was the victim of a "highly manipulated and fundamentally unfair process designed and used by the commissioner to reach and justify a predetermined outcome."
The engineering professors told the court in their brief that their interest was "in ensuring the laws of physics are applied with scientific integrity." Relying on the Ideal Gas Law, they restated claims that consumed much of Goodell's day-long arbitration hearing and were a part of the original appeal to the 2nd Circuit.
Olson's brief and the supporting briefs from Feinberg and the labor law professors are a tour de force engineered by a brilliant appellate advocate. Will it be enough to persuade the judges of the 2nd Circuit to do something they rarely do? Probably not. They are loath to grant rehearings. During 2015, according to the Administrative Office of the U.S. Courts, losing litigants filed 280 petitions for rehearing en banc, and the court denied all of them.
Will it be enough to interest the U.S. Supreme Court in a case involving the deflation of footballs? That is a different question. Two factors may result in the Supreme Court accepting the Brady case for consideration: First, there is the formidable presence of Olson and his supporting case. Having the country's largest and most important labor organization and its most respected arbiter in their corner can only help Olson and Brady's argument that the case is of national significance.
Then there's Brady himself. It is difficult to articulate the impact of his celebrity. None of the lawyers will discuss it, but they all know it is there. The NFL raised the issue in the first sentence of its first brief in the 2nd Circuit, when it asked for the case to be considered, "stripped of its celebrity." The use of the phrase was both an acknowledgment of Brady's high profile and an attempt to erase it from the litigation.
While it seems improbable that the nation's highest tribunal would spend its time on the deflation of footballs, if this endless saga has taught us anything, it's that nothing is impossible.