DCM - what does the bolded language mean? Are you talking about a petition to the Supreme Court for the Brady case? What is the point of that, other than to buy time for Brady and delay the suspension?
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I believe that he's saying that the NFLPA is running out the clock hoping for a Circuit split (a different ruling from the 8th Circuit related to the Commissioner's powers in the CBA) that would make a SCOTUS review more likely.
My view on this is a bit different from DCM's. First, the main advantage to adding Olson is that he's a really good lawyer and so you'll get a good brief. Plus, his specialty (like Clement's) is taking cases where others represented the petitioner below and giving them a fresh look. But, second, yeah, I do think there's some added benefit to putting him on the case at this point just for "star power." Second Circuit judges are human. Many of them probably have a desire, or at least like to imagine what it's like, to be on the Supreme Court. Two former Solicitors General arguing before you in an en banc courtroom in a case that's going to make every newspaper? The NFL. Tom Brady. Sure. I can see a judge who slogs his way through criminal cases and immigration stuff day after day for years hoping to get a cool securities law case every couple of months saying, "sure, what the heck." (I'm downplaying how interesting the Second Circuit's docket is -- it's very interesting, but even there it can get monotonous.) The Second Circuit, I understand, takes the fewest en banc cases in the country, and there doesn't seem to be any intra-circuit split here, so this one remains a longshot, I would think. Still, you've got a lot here. A published opinion with a dissent, two great lawyers, and national interest. It has a puncher's chance, I reckon.
I think part of the strategy here may be to keep the New York case alive as long as possible, in case the 8th Circuit decides its case in a way you can argue to the Supreme Court presents a circuit split. As long as the Brady case is on direct appeal, it can be reversed. That means that until the Supreme Court denies cert, then any new law that comes into effect from the Supreme Court can be applied to your case. So, let's say that the en banc period takes a few months, and then the NFLPA takes the full 90 days, plus the allotted 60 day extension, to seek cert. What they hope happens in that time is that the 8th Circuit decides the case in a way they can claim creates a split in the circuits, at which point they can say, "please take our case," or "please hold our case until a cert petition is filed in the 8th Circuit case." What happens after that is complicated and requires a fair amount of Supreme Court jargon, but if the Supreme Court were to grant cert in the 8th Circuit case, and if the Brady case was still alive at that point, they would ask the the Supreme Court to hold the Brady case in abeyance, and then if the 8th Circuit case were decided in a way that could theoretically help Brady, they would ask the Supreme Court to "grant vacate and remand," which essentially means send it back to the Second Circuit for a redo, to decide whether anything in the Peterson opinion causes them to rethink their decision. Again, the odds on all this are pretty long.
Edit: Sorry, what DCM was saying. Same point, more words.
So if the NFLPA thinks delay may work in their favor (possible circuit), would the NFL try to object to the two-week extension request? Or is that routinely approved?
Just want to throw this out there, but if the 8th Circuit does rule against the NFL and the Supreme Court decides to hear it, there's a good possibility we are currently sitting at 4-4 as things stand. This, of course, means that a vote for Donald Trump is a vote for Roger Goodell and a vote for Hillary Clinton is a vote for Thomas Edward Patrick Brady.
Garland is the compromise candidate for political show. His clock expires on election day. Justice Obama may be a Bears fan, but he knows what's up when it comes down to it.
There would be nine by the time it gets decided.
The problem with an 8-person Court, though, is that you need 4 votes to get cert granted. So you're trying to get 4 out of 8 instead of 9.
Remember that if the NFL loses in Peterson, it not the the NFLPA would have to seek cert, and it's not required to. They might just decide to let the decision sit to avoid a bad precedent that might jeopardize the Brady ruling.
It was such bullshit that the NFL gamed the process to get in New York. Of all the problems with having Goodell be the decision maker, the most unfair might be that they can control the timing and so have the element of surprise and can always win the race to court and choose the forum.
I've worked with Ted Olson*, we hired him to handle an appeal for us a few years ago. He's every bit as good as advertised, and worth every penny of the $1500 per hour he charges. Gibson Dunn's bench that helps him prepare isn't exactly filled with hacks either.
We hired him to do an appeal to the Delaware Supreme Court for us. First arguments were to a panel, and I can't quite remember procedurally how it worked but the panel voted to allow the case to proceed to oral argument in front of the full court. Consensus was that happened at least in part because the Court wanted to see Ted in action.
I'd imagine a Federal Circuit Court wouldn't be as impressed as the Delaware Supreme Court, but it certainly can't hurt.
Not to turn this thread political, but Ted Olson is a prominent conservative who got California's Proposition 8 (gay marriage ban) overturned. He's prominently featured in the HBO documentary "The Case Against 8". Pretty fascinating guy.
*Worked with in this context means the company I used to work for hired him to appeal a jury verdict in a commercial case for my part of the business. Since I was most familiar with the case I got to meet Ted, have lunch with him once and help him prep a bit. And watch oral arguments. If he ran me over with his car tomorrow he'd have no recollection that I ever paid him a ton of money to represent my business clients.
We hired him to do an appeal to the Delaware Supreme Court for us. First arguments were to a panel, and I can't quite remember procedurally how it worked but the panel voted to allow the case to proceed to oral argument in front of the full court. Consensus was that happened at least in part because the Court wanted to see Ted in action.
I'd imagine a Federal Circuit Court wouldn't be as impressed as the Delaware Supreme Court, but it certainly can't hurt.
Not to turn this thread political, but Ted Olson is a prominent conservative who got California's Proposition 8 (gay marriage ban) overturned. He's prominently featured in the HBO documentary "The Case Against 8". Pretty fascinating guy.
*Worked with in this context means the company I used to work for hired him to appeal a jury verdict in a commercial case for my part of the business. Since I was most familiar with the case I got to meet Ted, have lunch with him once and help him prep a bit. And watch oral arguments. If he ran me over with his car tomorrow he'd have no recollection that I ever paid him a ton of money to represent my business clients.
If Trump is elected, he'll shut down the NFL before he sees his bff serve a suspension.
I'd imagine he's thinking the four pro-business conservatives would side with Roger Dodger, and the four pro-worker liberals would be in the Union's corner.
There's also the finality of arbitration vs judicial review question, and on that, things don't break down along the usual idealogical lines; and/or other factors (class-waivers and so on) would determine the result.
Case-in-point: Here the liberals dissent, arguing that the arbitrator{s} should have been given greater deference; while the conservative majority advanced its antipathy toward class-action.
Anything that delays the suspension is for sure a victory. Brady is a 39 year old QB, we all hope the play till 45 stuff holds but he could very well not be Tom Brady any more by 2017.
The main significance of Olson joining Brady’s legal team is that it increases the likelihood that the team will petition for a panel rehearing and a rehearing en banc. On Monday, Second Circuit Judges Barrington Parker Jr. and Denny Chin authored a majority opinion in which they reversed U.S. District Judge Richard Berman’s ruling in Brady’s favor. Chief Judge Robert Katzmann dissented (for more on the ruling, see my SI.com legal commentary). If Brady and the NFLPA intended to accept defeat, it is unlikely they would retain an attorney of Olson’s caliber, and it is equally unlikely that Olson would be interested in joining a legal team that is resigned to defeat.
Brady and the NFLPA on Friday also requested a 14-day extension to file a petition for a panel rehearing and a rehearing en banc. As of now, they have 14 days from April 25 to file these petitions; assuming the extension is granted (and such extensions typically are granted), they would then have 28 days from April 25. The request for extension is likely a sign that Olson wants time to revamp the NFLPA’s legal arguments, which to date have been advocated by attorney Jeffrey Kessler. Kessler, who scored a decisive victory before Judge Berman last fall, encountered skepticism from Judges Parker and Chin. I attended the March 3 oral arguments in New York City and it was clear from the get-go that Judges Parker and Chin were unconvinced by Kessler. Olson could reshape Brady’s existing arguments and formulate others, too. Olson likely wouldn’t agree to join the Brady/NFLPA legal team without the explicit assurance that his strategies would be incorporated into all future filings.
Assuming Brady and the NFLPA petition for a panel rehearing and a rehearing en banc, the petition for panel rehearing would almost certainly be rejected since it would be decided by the same three judges who just voted 2–1 for the NFL. A petition for a rehearing en banc, however, would be a different story. The decision as to whether to grant the rehearing en banc, which would consist of a new appeal hearing before the Second Circuit’s 13 active judges and Judge Parker (a senior status who would be eligible to sit on an en banc rehearing), would be made by the 13 active judges. In the Second Circuit, petitions for a rehearing en banc are only granted about 1% of the time, but the odds should be somewhat higher for Brady. For one, he lost in a split-decision, rather than in a shutout, and the dissenting judge is the court’s Chief Judge. It also stands to reason that some of the 13 active judges may view the legal dispute differently than Judges Parker and Chin. After all, when including Judge Berman, two federal judges have agreed with Brady’s perspective and two have agreed with the NFL’s perspective, meaning there is a clear divide of opinion as to which side is “right.”
The addition of Olson could be a game-changer in terms of whether a rehearing en banc is granted. The 13 judges who will decide whether to grant such a rehearing may be more deferential to Olson than they would to other attorneys. Olson is widely regarded as a brilliant attorney. His insights should enhance Brady’s legal arguments, thus making it more likely a rehearing would be granted. Prominent sports attorney Paul Kelly, a former NHLPA executive director and former Assistant U.S Attorney, told SI.com that Olson’s addition increases the odds of a rehearing en banc. “Now you have a battle of former Solicitor Generals, Olson v. Clement,” Kelly, a principal at Jackson Lewis in Boston, observed. “That has to spark interest in the judges. They are human and probably most are football fans.
If a rehearing is granted, it might not be scheduled until the fall, which would likely mean an indefinite delay in Brady serving a suspension. In that scenario, Brady would ask for a “stay” (postponement) of the suspension until his appeals are exhausted. He would insist that he would suffer irreparable harm if the court denies a stay. More specifically, Brady would assert that once he serves the suspension, he can never get those games back. In response, the NFL would insist that Brady would not suffer irreparable harm because, should Brady ultimately prevail in court, he could eventually be repaid for salary lost as part of his suspension. Brady would reject such an argument by insisting that missing four games would irretrievably alter his team’s chances for success and thus Brady’s career.
Even with Olson on his side, Brady’s odds for a rehearing en banc remain far under 50%, and the granting of a rehearing doesn’t mean Brady would win it. If a rehearing is neither granted nor proves successful, Brady would likely then petition the U.S. Supreme Court. Brady would again face long odds, as the Supreme Court only accepts about 1% of cases for review. Olson’s presence, however, should help. The Court’s justices are very familiar with Olson and Clement, and they have seen these two attorneys in action many times before. It is possible the justices might regard the Brady case as more important if it could attract the advocacy of Olson and Clement.
http://www.si.com/nfl/2016/04/29/deflategate-tom-brady-ted-olson-hire
Brady and the NFLPA on Friday also requested a 14-day extension to file a petition for a panel rehearing and a rehearing en banc. As of now, they have 14 days from April 25 to file these petitions; assuming the extension is granted (and such extensions typically are granted), they would then have 28 days from April 25. The request for extension is likely a sign that Olson wants time to revamp the NFLPA’s legal arguments, which to date have been advocated by attorney Jeffrey Kessler. Kessler, who scored a decisive victory before Judge Berman last fall, encountered skepticism from Judges Parker and Chin. I attended the March 3 oral arguments in New York City and it was clear from the get-go that Judges Parker and Chin were unconvinced by Kessler. Olson could reshape Brady’s existing arguments and formulate others, too. Olson likely wouldn’t agree to join the Brady/NFLPA legal team without the explicit assurance that his strategies would be incorporated into all future filings.
Assuming Brady and the NFLPA petition for a panel rehearing and a rehearing en banc, the petition for panel rehearing would almost certainly be rejected since it would be decided by the same three judges who just voted 2–1 for the NFL. A petition for a rehearing en banc, however, would be a different story. The decision as to whether to grant the rehearing en banc, which would consist of a new appeal hearing before the Second Circuit’s 13 active judges and Judge Parker (a senior status who would be eligible to sit on an en banc rehearing), would be made by the 13 active judges. In the Second Circuit, petitions for a rehearing en banc are only granted about 1% of the time, but the odds should be somewhat higher for Brady. For one, he lost in a split-decision, rather than in a shutout, and the dissenting judge is the court’s Chief Judge. It also stands to reason that some of the 13 active judges may view the legal dispute differently than Judges Parker and Chin. After all, when including Judge Berman, two federal judges have agreed with Brady’s perspective and two have agreed with the NFL’s perspective, meaning there is a clear divide of opinion as to which side is “right.”
The addition of Olson could be a game-changer in terms of whether a rehearing en banc is granted. The 13 judges who will decide whether to grant such a rehearing may be more deferential to Olson than they would to other attorneys. Olson is widely regarded as a brilliant attorney. His insights should enhance Brady’s legal arguments, thus making it more likely a rehearing would be granted. Prominent sports attorney Paul Kelly, a former NHLPA executive director and former Assistant U.S Attorney, told SI.com that Olson’s addition increases the odds of a rehearing en banc. “Now you have a battle of former Solicitor Generals, Olson v. Clement,” Kelly, a principal at Jackson Lewis in Boston, observed. “That has to spark interest in the judges. They are human and probably most are football fans.
If a rehearing is granted, it might not be scheduled until the fall, which would likely mean an indefinite delay in Brady serving a suspension. In that scenario, Brady would ask for a “stay” (postponement) of the suspension until his appeals are exhausted. He would insist that he would suffer irreparable harm if the court denies a stay. More specifically, Brady would assert that once he serves the suspension, he can never get those games back. In response, the NFL would insist that Brady would not suffer irreparable harm because, should Brady ultimately prevail in court, he could eventually be repaid for salary lost as part of his suspension. Brady would reject such an argument by insisting that missing four games would irretrievably alter his team’s chances for success and thus Brady’s career.
Even with Olson on his side, Brady’s odds for a rehearing en banc remain far under 50%, and the granting of a rehearing doesn’t mean Brady would win it. If a rehearing is neither granted nor proves successful, Brady would likely then petition the U.S. Supreme Court. Brady would again face long odds, as the Supreme Court only accepts about 1% of cases for review. Olson’s presence, however, should help. The Court’s justices are very familiar with Olson and Clement, and they have seen these two attorneys in action many times before. It is possible the justices might regard the Brady case as more important if it could attract the advocacy of Olson and Clement.
http://www.si.com/nfl/2016/04/29/deflategate-tom-brady-ted-olson-hire
In the Ninth Circuit, when en banc rehearing is granted, the panel decision is vacated, and there would be no need to move for a stay because Brady won at the district court. This makes sense, because en banc rehearing is not an appeal of the three-judge panel, but hearing anew the appeal from the district court's judgment.
I know at least a few of the other circuits take this approach. Does anyone here know for a fact the Second Circuit's procedure is different?
Looked around online but couldn't find an answer. They grant en banc so infrequently it's hard to tell. There is nothing about vacatur in their local rule. It probably is academic, because it's difficult to imagine a stay not being granted. Presumably, the key reason you vacate is not just to stay but to signal to lower courts (and other panels) that the case is not binding while en band review is pending. That seems like it should be the rule but whether it's a common law principle of stare decisis or proactively ensured by vacatur in every circuit is an interesting question.
One minor other point to note. The Second Circuit has disclosed in some cases that it occasionally uses a mini en banc procedure where the panel will circulate opinions to the entire court before they are released. If that happened here, en banc review is likely hopeless. Likely this isn't one of the kind of cases where they would have done it. They probably do it most often where there is tension with a prior panel decision, but maybe the public interest in this case might have led them to do it.
One minor other point to note. The Second Circuit has disclosed in some cases that it occasionally uses a mini en banc procedure where the panel will circulate opinions to the entire court before they are released. If that happened here, en banc review is likely hopeless. Likely this isn't one of the kind of cases where they would have done it. They probably do it most often where there is tension with a prior panel decision, but maybe the public interest in this case might have led them to do it.
I don't know how frequently they mini en banc. I don't imagine it happens frequently. I don't think this case would warrant it. Given the short time that elapsed from argument to decision, I tend to doubt it happened.
If they did, you can expect a quick rejection of the rehearing petition, perhaps without requesting a response from the NFL.
I think the stay issue has been overplayed. Florio made a big deal about it, but the suspension does not kick in until game 1. Until then, there are no constraints on Beady's prep.
If rehearing is granted, the suspension will be stayed until disposition. If not, they'll be scrambling for a stay if a cert petition is filed.
If they did, you can expect a quick rejection of the rehearing petition, perhaps without requesting a response from the NFL.
I think the stay issue has been overplayed. Florio made a big deal about it, but the suspension does not kick in until game 1. Until then, there are no constraints on Beady's prep.
If rehearing is granted, the suspension will be stayed until disposition. If not, they'll be scrambling for a stay if a cert petition is filed.
By the way, any cert petition is well past the point of no return and won't be considered until the long conference at the end of September.
That means if Brady got a stay pending decision on cert, he'd start the season. And if SCOTUS denies on first opportunity, his suspension would start some time in October.
EDIT: Should say well past the realistic point of no return. Theoretically, if the NFLPA filed Monday and the league filed its brief in opposition early or the union waived its reply time, it could get into the last summer conference. But none of those things is going to happen.
That means if Brady got a stay pending decision on cert, he'd start the season. And if SCOTUS denies on first opportunity, his suspension would start some time in October.
EDIT: Should say well past the realistic point of no return. Theoretically, if the NFLPA filed Monday and the league filed its brief in opposition early or the union waived its reply time, it could get into the last summer conference. But none of those things is going to happen.
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Another btw is that the Circuit Justice for the Second Circuit is RBG. So if Brady applies for a stay from SCOTUS pending cert, she can decide herself or refer it to the full Court. But the most likely scenario is denial.
He strongly implied that Goodell and Kraft had a handshake deal to elminate Brady's suspension in exchange for Kraft giving his kneel-down speech at the owner's meetings and Goodell immediately renegged after Kraft's speech.
If that were really the case, then Kraft would be well within his rights to skewer him publicly. Sure, there would be no proof, but people would definitely believe Kraft for a number of reasons. Make Goodell lie (again) on camera.
I'm guessing the possibility was discussed and Roger might have said he'd strongly consider it, but we'd know by now if promises were made. Roger's a dick, and Kraft was played - that's not news.
I'm guessing the possibility was discussed and Roger might have said he'd strongly consider it, but we'd know by now if promises were made. Roger's a dick, and Kraft was played - that's not news.
If there's a stay, I would think Olson would like to get past that conference, because petitions can get lost in the thousands of petitions that accumulate. You'd ideally like to get in an October or November conference when they are trying to fill out the early 2017 calendar. And if you can string it even longer you have a chance at a 9-person Court. I think they are already into October if Olson takes a full 150 days. (Assuming they file a petition for rehearing.). It's 150 days, plus at least 14 even if the NFL waives filing a BIO. The last distribution date for the beginning of the term conference should be around mid-September.
Fascinating guy indeed. His wife Barbara, sadly, was on one of the 9/11 flights.
I read that the other day. She was originally scheduled to fly on 9/10 but changed her flight so that she could wake up with him that morning and wish him a happy birthday in person instead of with a phone phone call (his birthday is 9/11).
Barbara Olson was one of the first conservative talking heads that started making an impact on cable news networks. Was on CNN quite a bit, particularly with Larry King. Was mostly more level-headed than a Coulter or Ingram
What a waste. The reason she was on the flight was to go on Bill Maher's show. And even worse is she was originally going to fly out on 9/10 but waited until 9/11 so she would wake up on with Ted on his birthday 9/11
Maybe for the legal thread, but if a stay is not granted, is the case moot? I suppose if he can get his pay back or something it wouldn't be, and in fact he's not even the petitioner. Can a union continue to challenge an employee's discipline even after it has been effected?
That is why a stay will likely be granted so long as this is pending before a court on the merits, whether that be on rehearing or in the Supreme Court.
Disagree somewhat. if the Second Circuit doesn't grant a stay, it's very unlikely SCOTUS will.
If SCOTUS grants cert, it will grant a stay. Second Circuit may grant a stay pending ruling on cert petition even if it denies rehearing.
Of course it would grant a stay of it grants cert. The question that actually matters is what will happen when en band rehearing is denied, and the second circuit denies a stay.
The COA isn't in the business of granting stys where there is no identifiable circuit split and they've decided the case. And SCOTUS isn't in the business of granting stay applications when it is unlikely to grant cert.
The COA isn't in the business of granting stys where there is no identifiable circuit split and they've decided the case. And SCOTUS isn't in the business of granting stay applications when it is unlikely to grant cert.
Yes. As a matter of fact, this is exactly what is happening in the Adrian Peterson case.
The good thing about hiring Olson is that at least we don't have to worry about the horse getting back into the barn.
Normal course of business for NFL to oppose the extension request?
It's a link to NFL reasoning for opposing the request.
It's a link to NFL reasoning for opposing the request.
Daniel Wallach @WALLACHLEGAL 23s23 seconds ago
My take: Second Circuit will either deny Brady's request for more time or split the difference at 7 days. Probably the latter.
My take: Second Circuit will either deny Brady's request for more time or split the difference at 7 days. Probably the latter.