The Second Circuit has denied Tom Brady's request for an en banc rehearing. Brady's last remaining option is to ask the Supreme Court to take his case. His attorneys are reportedly deciding whether to take that step.
They shouldn't. There's no way the Supreme Court is going to take this case. It's over.
First, some procedural background on how we got to this point. As just about everyone in the sports universe knows, the NFL initially imposed a four-game suspension on Brady through an arbitration process. Brady went to federal court to challenge the arbitral decision, and the trial-level federal judge (Judge Berman) agreed with him and vacated the award. The NFL appealed to the Court of Appeals for the Second Circuit, and a three-judge panel reversed Judge Berman and reinstated the suspension. Brady asked for an "en banc" rehearing, in which all of a circuit's judges review the case. That's the request that was just denied.
The final step would be to petition the Supreme Court for a writ of certiorari, which would require getting four of the justices to agree to take the case. Brady and his team can take their best shot, but they'll fail.
There's a critical difference between intermediate appellate courts, such as the Second Circuit, and the Supreme Court. Intermediate appellate courts are largely "error-correcting" courts. They administer justice between specific parties in specific cases. If a trial judge makes a legal error and an affected party believes that error affected the result, that party has an essentially absolute right to have that judge's decision reviewed by the intermediate court, which will reverse the decision if it agrees that a consequential mistake was made.
The Supreme Court plays an entirely different role. At least in theory, the Supreme Court doesn't care much about the result in a particular case, or whether that result was just or fair to the parties involved. Instead, its primary task is to answer important legal questions that have implications for the entire country.
In Brady's case, there's no particular legal question that's likely to get the justices' attention. The parties never disputed, for example, the legal standard that should be applied when a federal judge reviews an arbitrator's decision. If they had -- if, for example, Brady's team had argued that the judge should review the decision "de novo" (making his own independent decision, with no deference to the arbitrator), and the NFL had argued that a more deferential standard applied -- that would have been a classic legal question. If the Second Circuit had then decided that the NFL's preferred standard applied, and ruled against Brady on that basis, Brady could conceivably ask the Supreme Court to consider the legal question of which "standard of review" was the correct one.
But that's not what happened. Again, the parties never argued over that legal question. Both sides agreed that the judge was supposed to apply a highly deferential standard of review. Judge Berman claimed to be following that rule; he never stated, for example, that he was not giving substantial deference to Goodell's decision. Instead, his conclusion was that, even using that standard, the evidence supported vacating the suspension. On appeal, the NFL's primary argument was that Judge Berman had applied that legal standard incorrectly, and that under a correct application of the standard the suspension should stand. The Second Circuit agreed.
So the main dispute between the parties has been over how an essentially undisputed legal rule was applied -- not over which legal rule should have been used. And the Supreme Court is especially reluctant to grant a certiorari petition under those circumstances. In fact, there's a specific Supreme Court rule stating that "a petition for writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law."
Once this case moved from the arbitral arena into the federal courts, as a legal matter it was never about what had actually happened -- who did what with the footballs, or what if anything Brady knew -- or what the appropriate punishment should be. Legally, it was about who gets to make those decisions. The Second Circuit panel reversed Brady's initial victory not because it was convinced that Goodell had been right, but because it believed that Goodell had the authority to make the decisions he made and that he hadn't erred egregiously enough to justify vacating the suspension. And now it's a virtual certainty that the Supreme Court will reject the case -- not necessarily because the justices will agree with the Second Circuit panel, but because on matters with no far-reaching legal significance the intermediate courts have the last word.