Why I Still Think Tom Brady Will Lose on Appeal

New England Patriots quarterback Tom Brady listens to a question during a press conference following the NFL football AFC Cha
New England Patriots quarterback Tom Brady listens to a question during a press conference following the NFL football AFC Championship game between the Denver Broncos and the New England Patriots, Sunday, Jan. 24, 2016, in Denver. The Broncos defeated the Patriots 20-18 to advance to the Super Bowl. (AP Photo/Joe Mahoney)

The arguments in the Tom Brady/NFL appeal are now finished. The briefs have all been written, and the oral arguments took place on Thursday. Now it's all in the hands of three Second Circuit appellate judges.

I've written before that I expect Brady's initial victory to be reversed by the appellate court, and that's still my prediction. That's not because of the specific questions asked by the appellate judges, although the reports are that those judges questioned Brady's lawyers more aggressively than may have been expected. Most lawyers say that trying to predict an appellate outcome based on the oral argument is a bad idea -- it's a judge's job to grill both sides' lawyers, so probing doesn't necessarily imply skepticism -- and it's much better to listen to some random criminal lawyer from Oregon. (OK, technically no one's ever said that last part in so many words, but it's clearly implied.) Instead, it's because of the way appellate law works, combined with the legal regime governing labor arbitrations.

There are three levels of courts in the federal system -- trial courts, intermediate appellate courts, and the Supreme Court. Appellate decisions "bind" lower courts within the higher courts' jurisdictions, so when the same question comes up again the lower court is supposed to follow the higher court's lead. We usually focus on the Supreme Court, but that court only hears a small number of cases and tends to make decisions at a fairly general level. That means many of the most consequential decisions are made by intermediate courts such as the Second Circuit. Whatever that court does in Brady's case will have a major effect on future cases, and the judges know that.

Which is where the labor arbitration system, which governs NFL players' collective bargaining agreements and disputes, comes in. Arbitration is an arrangement in which parties who are going to be working or doing business together decide ahead of time that if disputes arise that could otherwise end up in court, they'll instead have those disputes determined by one or more arbitrators outside of the "official" court system.

Arbitration, including labor arbitration, is a controversial topic. Nonetheless, Congress and the federal courts have firmly decided that arbitration is a beneficial system that they're going to support. One way to do this is to ensure that arbitrators' decisions are treated as final and not easily undone or disrupted. After all, if losing parties in arbitrations could readily go to judges to reverse the awards, the arbitration process would seem like a waste of time; it would be more efficient to just go to court in the first instance. So Congress and the courts have both made it clear that it's really hard to overturn an arbitrator's decision, in part to discourage parties from even trying.

That said, after an arbitration -- especially a high-stakes one -- the losing party is often going to want to find some way to avoid the effect of the arbitrator's decision, and that party's lawyers will be eager to help. (Sorry. We're lawyers; that's what we do.) I've been in the situation of trying to undo or get around an arbitrator's decision, and the first thing we do is look for some precedent (prior case) in which an appellate court decided that an arbitrator's decision should be vacated. Then, our job is to convince our judge that our case is a lot that like that previous case, so our arbitral decision should be vacated too.

Appellate judges, such as the three presiding over the Brady/NFL case, know all this. They're acutely aware that a ruling upholding the trial judge's decision (that is, vacating the original arbitral award) will be seized upon by future losing arbitrants as precedents for why their arbitrators' decisions should also be vacated.

Of course, the law does allow arbitral decisions to be vacated under certain narrowly defined circumstances, and if the appellate judges decide (as Judge Berman did) that those circumstances truly do exist in Brady's case they'll certainly be willing to rule in his favor. In making that decision, though, they have to think not only about Brady's case itself but about the effect their decision will have on future cases.

And that's what makes me think they'll ultimately come down on the NFL's side. At bottom, however questionable Goodell's conduct of the arbitration may have been, I just don't believe an appellate panel will find it was far enough outside the range of legitimacy to satisfy the extremely high standard for vacating an arbitral award. And a decision for Brady here would create a foothold for future losing arbitrants to attack arbitral outcomes that, according to the legal standards that have been laid down so far, probably shouldn't be open to challenge.

Bottom line: my money's still on an NFL victory here.

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