OK, I'm Doubling Down: Tom Brady's Case Will Be Reversed on Appeal

Last week I wrote a post suggesting that there was good reason to believe that Tom Brady's recent legal victory could be reversed by an appellate court. That post sparked a number of responses--enough that I thought it was worth doing a follow-up post discussing some of the points made in the comments, including:

I'm an idiot. Probably the most frequently stated point, and a fair one. I could address it on the merits, but I'm probably not the most objective person to comment on this; that would be like Roger Goodell hearing the appeal of . . . OK, bad example. Anyway, I'll move on to the more technical points.

The judge's opinion was correct, and was properly based on the law governing judicial review of arbitration decisions. Legally, once the NFL issued the suspension and upheld it in the internal appeal, the key question became not whether Brady actually did anything wrong or what an appropriate punishment should be, but how much deference a court has to give to an arbitrator's decision. As I wrote in the first post, I thought that although the NFL and Goodell may well have erred on the merits, nothing they did was so egregiously wrong as to satisfy the standard for vacating an arbitral decision. Many of you responded by saying that Judge Berman obviously knows the applicable rules and relied on them in his opinion, so there's no basis for thinking he got it wrong.

I agree, up to a point. But when two sides with good legal counsel are both willing to bet the house on a case, it's often because there are no obvious "right" answers clear enough for any good judge to see. When that's the situation, as it is here, an appellate court can easily overturn even an apparently well-reasoned opinion.

There's a saying among lawyers that "if the law is against you, argue the facts; if the facts are against you, argue the law" (and, of course, "if both the law and the facts are against you, pound on the table and yell like hell"). In this case the facts were probably on Brady's side; looking at the case, it's easy to see why many think he got a raw deal from the NFL.

But the law is heavily, heavily on the NFL's side--there's a huge amount of case law emphasizing just how far off base an arbitrator has to be before a court is justified in vacating his decision. My own practice these days is primarily in criminal law, but back in my commercial litigation days I was occasionally in the position of trying to avoid or get around an arbitrator's decision, and I can absolutely say that the legal deck is stacked severely against someone in that position.

In my opinion, Judge Berman may have been significantly influenced by the powerful factual arguments in Brady's favor--enough so that he may have been induced to apply the admittedly imprecise legal rules in a way that produced what he thought was the right result. But I'm predicting that on appeal, that powerful factual pull will be less influential, and the appellate court will focus more on the legal rules mandating substantial deference to arbitrators' decisions.

The reversal rate for this court is low. True, but largely misleading. Looking at reversal rates across a broad range of cases is almost useless. An appellate court's caseload includes a large number of straightforward cases--including, for example, many of the cases brought by federal prisoners challenging their convictions or their conditions of confinement--that skew the reversal rates down. The more complex cases, such as Brady's, are correspondingly much less predictable.

This is especially true because of the lack of any objectively "right" answers. Judges disagree on cases all the time. It's routine to see, for example, a highly respected trial judge come to one conclusion, a three-judge appellate panel split 2-1 on whether she was right, and the Supreme Court divide 5-4 or 6-3 on whether to affirm that appellate panel. Here, you can rest assured that I'm not claiming to be smarter or better-informed than Judge Berman--just assessing how a Second Circuit panel might deal with his opinion.

After re-reading Judge Berman's opinion and also reviewing the parties' briefs, I'm even more convinced that the Second Circuit will ultimately conclude that the NFL has the better argument. So I'm going to double down and drop the weaselish lawyer words like "may" and "likelihood." I'm predicting that if the parties don't settle and the Second Circuit decides the case, the NFL will win and Judge Berman's decision will be reversed.

Finally, a few words to my more fervent Boston-area commenters--particularly those who implied that my analysis was based on the fact that I hail from the same general geographic sector as the Patriots' last Super Bowl opponent.

Believe it or not, I've always loved your area and your teams. I read every Bill Simmons column for more than a decade. We had something special.

But no more. You've turned me--you've made this personal. So here's what's going to happen.

When the Second Circuit issues its opinion reversing this case, I will print it out and have it encased in a glass sphere. I'll walk into the Cask 'n Flagon holding the sphere in one hand, pinned to my head David Tyree-style, then roll it between the legs of a cardboard Bill Buckner cutout. I will insist that you all pay for my drinks as partial compensation for impugning my professional competence and integrity, and I'll let Grady Little be the judge of when I've had enough and need to stop. Then I'll finally leave, but only after asking you all to sign my collector's draft copy of "19-0: The Historic Championship Season of New England's Unbeatable Patriots." On my way out I'll have William Perry carry the sphere through the door for me--unnecessary, of course, but a fitting exclamation point.

Of course, if Judge Berman's ruling is upheld, I'll immediately delete this post--or have the files transferred to Brady's cell phone, which I understand will have the same practical effect.